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ELEMENTS 


OF   THE 


LAW  OF  BAILMENTS 

AND  CARRIERS 


INCLUDING   PLEDGE  AND   PAWN 
AND   INNKEEPERS 


BY 

PHILIP  T.  VAN  ZILE 

of  the  detroit  bar 
Author  of  Equity  Pleading  and  Pkactice 


SECOND  EDITION 


CHICAGO 

CALLAGHAN  &  COMPANY 
1908 


Copyright,  1908, 

BY 

CALLAGHAN  AND  COMPANY. 


Copyright,  1908, 

BY 

CALLAGHAN  &  COMPANY. 


STA.TE  JOURNAL  PRINTING  COMPANY, 
PRnrrKBa  and  Stereotypers, 

UADISON.  WIS. 


PREFACE  TO  FIRST  EDITION. 


In  the  publication  of  this  work  it  is  not  expected  that  any  new 
principle  of  the  law  of  bailments  and  carriers  will  be  promul- 
gated, for  we  fully  realize  the  truthfulness  and  wisdom  of  that 
which  was  said  three  thousand  years  ago,  ''the  thing  that  hath 
been,  it  is  that  which  shall  be;  and  that  which  is  done  is  that 
which  shall  be  done;  and  there  is  no  new  thing  under  the  sun." 

For  ten  years  the  writer  has  been  engaged  as  a  lecturer  upon 
these  subjects  in  the  Detroit  College  of  Law,  and  the  interest 
awakened  while  thus  engaged  suggested  the  writing  of  this  book. 

The  principles  governing  the  law  here  discussed  are  by  no 
means  new;  they  are  as  old  as  the  civilization  of  the  races;  asi 
the  recognition  of  "law  and  order,"  and  the  property  rights  of 
men. 

The  needs  of  men  and  the  advancement  of  business  have  at 
all  times  brought  to  the  attention  of  courts  and  authors  new  de- 
velopments and  situations  for  the  application  of  the  settled  prin- 
ciples of  the  law ;  and  so  the  most  that  can  be  said  is,  that  while 
the  law  upon  these  subjects  has  been  and  is  a  development,  it  is 
a  development  of  the  application  of  principles  rather  than  a  cre- 
ation of  new  and  unknown  rules  of  law ;  and  all  that  any  writer 
can  expect  to  accomplish  is  to  note  this  development  by  way  of 
the  application  of  these  known  legal  principles  to  the  new  and 
novel  questions  of  fact  that  the  great  business  world  is  con- 
stantly presenting  for  the  consideration  of  the  courts  and  the 
legal  profession. 

The  development  of  the  law  of  carriers  has  been  largely  the 
result  of  the  demands  of  public  policy.  It  was  the  demand  of 
public  policy  that  laid  upon  the  common  carrier  the  extraordi- 
nary liability ;  and  it  is  public  policy  that,  recognizing  the  ad- 
vance of  civilization  and  the  lighting  up  of  the  dark  spots  of 
earth,  will  modify  that  harsh  and  extraordinary  liability,  or  at 
least  allow  it  to  be  done  by  contract  based  upon  valuable  con- 


IV  PREFACE  TO  FIRST  EDITION. 

sideration.  These  questions  are  interesting  to  the  student  and 
the  practitioner. 

The  carrier  of  passengers,  his  relation  to  the  passenger,  and 
his  liability  have  undergone  interesting  developments  by  reason 
of  the  appearance  and  adoption  of  the  many  important  im- 
provements in  the  vehicles  of  the  carrier  and  the  motive  power 
introduced  during  the  last  decade. 

There  are  no  subjects  of  the  law  that  are  more  replete  with 
progressive  reasoning  from  established  principles  than  the  sub- 
jects we  have  here  treated.  But  while  the  past  has  yielded  to 
us  the  settlement  of  interesting  questions  in  the  application  of 
the  law  of  bailments  and  carriers,  the  future  promises  questions 
of  full  greater  interest  in  every  department  of  business  to 
which  these  subjects  relate.  They  are  continually  taking  on 
new  activities  and  developing  new  and  important  principles. 
From  the  messenger  service  to  the  management  of  the  great 
trunk  lines  of  railroads,  all  are  teeming  with  the  push  and  im- 
provements of  the  age.  Electricity  promises  new  fields  not  yet 
explored,  but  soon  to  be  met.  Improved  machinery  and  appli- 
ances, the  great  increase  in  the  volume  of  business,  give  an 
added  interest  to  the  law  of  bailments  and  carriers;  and  one 
who  writes  today  stands  merely  upon  the  threshold,  and  can 
but  contemplate  with  amazement  the  ever  onsweeping  business 
and  industries  of  men  that  are  constantly  presenting  to  the 
lawyer  and  the  court  new  and  important  questions.  Our  past 
and  present  have,  indeed,  been  important,  but  the  future  must 
be  more  so. 

Should  this  work  be  instrumental  in  aiding  the  student  of  the 
law  in  his  researches,  and  merit  the  commendation  of  my 
brethren  at  the  bar,  the  writer  will  feel  repaid  for  his  endeavor, 

Detroit,  ]\Iich.,  January  1,  1902.  P.  T.  V. 


PREFACE  TO  SECOND  EDITION. 


Since  the  first  publication  of  this  work  very  many  important 
cases  have  been  heard  ajid  decided  in  the  courts,  giving  to  the 
profession  new  and  important  views  of  the  law  relating  thereto. 
Statutes  that  have  added  new  features  to  the  law  of  bailments 
and  carriers  have  been  enacted  by  both  state  and  federal  legis- 
latures. 

The  last  congress  of  the  United  States  made  some  important 
changes  in  the  interstate  commerce  law,  and  undertook  to  pass 
a  law  fixing  the  liability  of  the  carrier  in  cases  of  injuries  re- 
sulting from  the  negligence  of  fellow  servants. 

Because  of  these  changes  and  the  important  questions  decided 
by  the  numerous  courts  of  the  country,  where  both  the  common 
law  rules  discussed  in  this  work,  as  well  as  the  more  recent  stat- 
utory enactments  have  received  attention,  and  for  the  sake  of 
presenting  several  new  sections  that  are  deemed  necessary,  and 
redressing  and  in  several  instances  rewriting  some  of  the  old 
sections,  and  in  furtherance  of  an  endeavor  to  generally  im- 
prove the  work,  it  has  been  thought  best  to  present  this  second 
and  revised  edition.  Should  it  be  accorded  the  kindly  reception 
of  the  first  edition,  and  meet  or  partially  meet  the  needs  of  the 
profession  in  the  subjects  presented  the  writer  will  be  rewarded 
for  the  labor  it  has  cost  him. 

Detroit,  November,  1907.  P.  T.  V. 


TABLE  OF  CONTENTS. 


[References  are  to  sections.] 


PART  FIRST 
ORDINARY  BAILMENTS. 


CHAPTER  I. 

THE  RELATION, 

Origin  and  growth  of  the  bailment  relation 1 

Interpretation  of  the  English  courts 2 

Definitions  and  critcisms  of  definitions 3 

Some  very  common  examples  of  bailments 4 

Purpose  of  the  bailment  may  necessitate  a  change  in  condition. . .  5 

A  further  exception  as  to  redelivery 6 

•  Grain  stored  in  elevators 7 

Flouring  mills 8 

The  Roman  mutuum 9 

The  parties  to  a  bailment 10 

Who  may  be  a  bailor  or  a  bailee 11 

Competency  of  parties 12 

These  disabilites  a  shield  not  a  sword 13 

The  theory  of  the  liability  of  an  infant  bailee 14 

An  agent  may  create  the  relation 15 

Corporations    16 

The  kind  of  property  that  may  be  the  subject  of  bailment 17 

Delivery  and  acceptance  18 

A  summary  of  some  essentials 19 

Title  of  the  bailor 20 

Bailor  may  sell  or  incumber  property — Title  of  bailee 21 

Bailor  must  exercise  good  faith — ^Must  not  expose  bailee  to  dan- 
ger      22 

Bailment  or  sale 23 

Commingling  of  grain  on  storage 24 

A  bailment,  a  sale  or  a  gift — How  determined 25 


Vlll  TABLE  OP   CONTENTS. 

[References   are   to   sections.] 

CHAPTER  II. 

OF  THE  CLASSIFICATION  OF  BAILMENTS. 

Roman  classification  adopted  by  authors  26 

Modern  classification  upon  the  theory  of  recompense  or  no  recom- 
pense      27 

Modern  classification  includes  earlier  classification 28 

The  most  general  subdivision  of  bailments ^  29 

Chart  showing  classification  of  bailments 30 

CHAPTER  III. 

OF    THE    RIGHTS,    DUTIES    AND    LIABILITIES    GENERALLY  OF 
BAILOR  AND  BAILEE. 

Object  of   chapter 31 

Gratuitous  and  non-gratuitous  bailments 32 

Consideration  supporting  the  contract 33 

Negligence  or  diligence 34 

Chart  showing  duties  and  liabilities 35 

What  is  diligence  and  what  is  negligence  36 

Definiton  generally  accepted 37 

Every  case  ruled  by  its  own  circumstances 38 

High  diligence — Gross  negligence 39 

Negligence  and  fraud  distinguished 40 

Diligence  and  negligence  questions  of  law  and  fact 41 

Classification  of  conditions  and  circumstances 42 

CHAPTER  IV. 

SOME  FURTHER  GENERAL  PRINCIPLES  TOUCHING  RIGHTS  AND 
LIABILITIES  OF  PARTIES  TO  BAILMENT. 

An  element  of  agency 43 

Under  circumstances  may  bind  bailor 44 

Right  to  use  the  property 45 

Unwarranted  use  would  render  the  bailee  liable 46 

Bailee  may  protect  the  property  and  his  interest 47 

Skilled  bailee ■ 48 

Rule  not  always  carefully  stated 49 

Special  deposits  in  banks 50 

Determining   negligence 51 

Honesty  and  good  faith  demanded 52 

Bailee  may  protect  himself  against  claim  of  third  parties 53 

"What  would  excuse  liability 54 

Unlawful  tortious  possession  would  render  bailee  liable  for  injury 

or  loss 55 

Rights  and  duties  to  third  parties 56 


TABLE  OP  CONTENTS.  IX 

[References   are   to   sections.] 

Bailee  against  third  parties 57 

Modifying  or  enlarging  responsibility  by  contract 58 

How  far  can  the  bailee  lessen  his  responsibility  by  contract 59 

Redelivery  to  bailor 60 

Not  always  required  to  redeliver  the  specific  property 61 

Excuses  for  non-delivery 62 

Conversion  of  the  property 63 

Bailee's  right  to  compensation  and  lien  64 

Agreement   for    compensation,    express    or    implied,    necessary    to 

create  lien 65 

If  no  statute  or  express  contract  giving  bailee  lien  he  may  have 

common-law   lien 66 

Two   kinds  of  liens 67 

Delivery  to  the  bailee  for  the  purpose  of  the  bailment  necessary  to 

the  establishment  of  the  lien 68 

Possession  of  the  property  an  essential 69 

The  finder  of  property — His  compensation — Lien 70 

Extinction  of  the  lien — Payment  or  tender 71 

The  lien  may  be  waived 72 

Lien  once  lost  cannot  be  revived 73 

Right  of  the  bailor  to  compensation 74 

Enforcement  of  the  lien  of  bailee 75 

CHAPTER  V. 

TERMINATION  OF  THE  BAILMENT. 

The  several   ways 76 

By  expiration  of  the  time  for  which  the  property  was  bailed 77 

By  reason  of  the  accomplishment  of  the  object 78 

By    act    of    parties 79 

By  operation  of  law 80 

By  destruction  of  the  bailed  property 81 

The  death  of  the  bailee 82 

By  incompetency  of  the  parties 83 

CHAPTER  VI. 

LIABILITY  OF  THE  BAILOR  AND  THE  BAILEE  WHEN  THE  BAIL- 
MENT IS  FOR  THE  SOLE  BENEFIT  OF  THE  BAILOR. 

These  bailments  of  two  kinds 84 

Mandatuni    85 

Depositum   86 

Use  of  deposit 87 

Special,  not  general  deposit 88 

O^asi-deposits    89 

Subject  limited 90 

Distinction  between  depositum  and  mandatum 91 


X  TABLE   OF   CONTENTS. 

[References  are  to  sections.] 

A  contract  relation 92 

The  bailee's  liability 93 

Authorities  not  entirely  harmonious 94 

For  the  sole  benefit  of  bailor 95 

EVen  indirect  benefit  would  change  the  class  of  bailment 96 

Notice  of  facts  requiring  special  care 97 

Failure  to  obey  instruction  or  the  terms  of  the  bailment 98 

Termination  of  the  relation  and  bailor's  remedies 99 

CHAPTER  VII. 

LIABILITY  OF  BAILOR  AND  BAILEE  WHEN  BAILMENT  IS  FOR 
THE  SOLE  BENEFIT  OF  THE  BAILEE. 

Commodatum 100 

For  sole  benefit  of  the  bailee 101 

The  liability  of  the  bailee 102 

The  contract  must  be  for  legal  purpose 103 

Need  not  be  absolute  owner  to  be  bailor  or  lender 104 

What  right  does  the  contract  of  loan  or  bailment  confer? 105 

Obligations  of  the  borrower 106 

Bailee's  defenses 107 

The  injury  or  loss  must  have  been  without  his  fault 108 

Ordinary  and  extraordinary  expenses  to  be  paid 109 

Redelivery  of  the  thing  bailed 110 

Borrower  cannot  retain  for  debt  due  him Ill 

CHAPTER  VIII. 

LIABILITY    OF    BAILOR    AND    BAILETE    WHEN    BAILMENT  FOR 
BENEFIT  OF  BOTH. 

Of  the  nature  and  extent  of  mutual-benefit  bailments 112 

Locatio  et  conductio  bailments 113 

Some  definitions  further  explaining 114 

A  general  view — Locatio  et  conductio 115 

Locatio  conductio  bailments 116 

What  the  hiring  bailments  embrace 117 

General  subdivisions  of  the  hiring  bailments 118 

CHAPTER  IX. 
LOCATIO  REI. 

The  hiring  of  the  thing  for  use 119 

A  contract  relation 120 

Bailor's  title — Warranty  of  bailor 121 

Bailee's  possession — Property  interest  in  the  thing 122 


TABLE  OF  CONTENTS.  SI 

V  [References  are  to  sections.] 

Duty  of  bailor  to  give  notice  of  defects  rendering  thing  unfit  for 

use  or  dangerous 123 

Bailee — Good  faith  of — Misuse  of  thing 124 

Conversion — ^What  constitutes 125 

•  Exercising   unauthorized    dominion    and    control    over    prop- 
erty— Conversion   126 

Bailor's  right  against  third  party,  against  bailee 127 

Bailee's  liability  to  third  parties  for  negligent  use — Bailee's  negli- 
gence not  imputable  to  bailor 128 

Bailee's  right  under  certain  circumstances  to  assign  his  interests.  129 

Extraordinary  and  incidental  expenses 130 

Termination  of  the  bailment 131 

CHAPTEE  X. 

LOCATIO  OPERIS  BAILMENTS. 

The  hiring  of  labor  and  service  upon  the  thing 132 

Locatio  operis  fadendi — The  hiring  of  work  and  labor  upon  the 

thing    133 

Contract   relation 134 

The  obligations  of  the  employer,  the  bailor 135 

Bailee  has  a  special  property  in  the  thing 136 

Whether  a  sale  or  bailment 137 

When  product  from  material  furnished  and  labor  to  be  sold  and 

profits  divided  138 

If  the  thing  is  destroyed  during  the  carrying  out  of  the  agreement 

or  after  finished 139 

The  duty  of  the  bailee 140 

If  the  work  is  to  be  performed  by  the  job,  and  loss  or  injury  occur 

before  completion    141 

The  work  must  be  done  as  contracted 142 

Same  subject 143 

Not   every   failure   to   perform   contract   obligations   will    deprive 

bailee  of  entire  compensation 144 

If  the  failure  to  perform  is  the  fault  of  the  bailor 145 

Inevitable  accident  or  irresistible  force 14G 

— —  Reclaiming  the  property 147 

Generally  the  bailee  may  do  the  work  by  an  agent  or  servant 148 

Where  skill  as  well  as  care  is  required 149 

He  must  exercise  the  skill  adequate  to  the  proper  performance  of 

the  work    150 

If  the  bailee  for  hire  purports  to  have  skill  he  must  use  it 151 

Ordinary  skill  required 152 

The  degree  of  skill  and  diligence  increases  in  certain  cases 153 

Skilled  work  by  an  agent  or  servant 154 

Defenses  of  the  bailee 155 

Notice  to  the  bailor  that  claims  for  defects  must  be  made  within  a 

certain  time  156 

b 


xn  TABLE   OF   CONTENTS. 

[References  are  to  sections.] 

When  will  failure  of  bailor  to  give  notice  waive  defects 157 

Title  to  the  material  used  by  bailee  passes  to  bailor  by  accession.  158 

The  lien  of  the  bailee  in  locatio  operis  faciendi  bailments 159 

Priority  of  the  lien 160 

Agisters  and  livery-stable  men — No  lien  at  common  law 161 

Lien  by  statute 162 

Chattel  mortgage  takes  precedence  over  lien 163 

CHAPTEE  XI. 

LOCATIO  CUSTODI.^. 

The  letting  of  care  and  custody  of  the  thing  for  hire 164 

What  the  subdivision  embraces 165 

Depositum    166 

Warehouseman    167 

Public  warehouses 168 

Bonded  warehouses  169 

All  warehouses  public  or  quasi-vublic 170 

Delivery — To  create  liability 171 

A  sale  or  a  bailment 172 

The  warehouse  receipt 173 

At  common  law  a  warehouse  receipt  in  a  technical  sense  is  not 

negotiable    174 

Negotiability  of  receipt  provided  by  statute 175 

Warehouseman  not  permitted  to  impeach  his  receipt 176 

Warehousemen  may  insure  the  property 177 

Usage  and  general  course  of  business  to  a  certain  extent  defines 

the  duty  of  warehouseman  as  bailee  178 

Storage-house  keepers   179 

Must  comply  with  the  contract  for  storage 180 

Some  of  the  duties  of  the  bailor 181 

Dangerous   articles 182 

When  the  liability  of  the  storage-house  keeper  begins 183 

When  the  liability  ends 184 

Storage-house  keepers  and  warehousemen  the  same 185 

Common  carriers  when  warehousemen 186 

As  to  goods  awaiting  delivery 187 

The  New  Hampshire  rule 188 

The  third  class  of  cases 189 

\Vharfingers 190 

When  the  liability  begins 191 

When  the  liability  ends 192 

Factors  or  commission  merchants 193 

Safe  deposit  and  trust  companies 194 

The  relation  between  the  depositor  and  the  safe  deposit  company.  195 

The  nature  of  the  relation  the  liability  of  the  parties 196 

Other  classes  of  custodians 197 


TABLE  OF  CONTENTS.  Xiii 

[References   are   to   sections.] 

Liability  of   bailee   in   custodier   bailments 198 

When  does  the  liability  commence  and  end 199 

Proper  place  and  kind  of  storage 200 

Diligence  must  keep  pace  with  improvements 201 

Proof  of  negligence  202 

Does  the  burden  of  proof  of  negligence  shift 203 

The  question  summed  up  and  the  rule  settled 204 

Contributory  negligence    205 

Negligence  of  servants 206 

Unauthorized  use  of  chattels 207 

Delivery,  misdelivery,  non-delivery 208 

Confusion   of   goods 209 

Criminal  liability  210 

Termination    211 

Conversion    212 

Compensation — Lien  213 

Actions  against  the  warehouseman 214 


PART  SECOND 
PLEDGE  OR  PAWN 


CHAPTEE  I. 

THE  RELATION. 

Pignus    215 

The  scope  of  the  business 216 

Definition   217 

Some    essentials 218 

Competent  parties  219 

There  must  be  assent  of  the  parties 220 

Title  of  the  property — Authority  to  pledge 221 

Corporations — Partnerships — Agencies    222 

Property  the  subject  of  the  pledge 223 

Corporeal  or  incorporeal 224 

Property  not  in  existence  or  acquired 225 

Exceptions 226 

Exempt  property  may  be  pledged 227 

Pensions  and  pay  to  officers  and  soldiers 228 

The  debt  or  engagement 229 

Pledge  as  collateral  security 230 


XIV  TABLE   OF   CONTENTS. 

[References   are   to  sections.] 

Contract  should  specify  debt  secured 231 

Pledge  may  be  to  secure  past,  present  or  future  indebtedness.  232 

The  pledgor  may  pledge  his  property  to  secure  the  debt  of 

another   233 

As  to  holding  property  for  former  or  another  debt 234 

Continuing  security — Future  transactions 235 

When  several  debts — Applications  of  payment 236 

A  pledge  which  secures  a  debt  bearing  interest  secures  the 

interest  as  well  as  the  debt 237 

Delivery  of  the  property  by  the  pledgor — Acceptance  and  continued 

possession  of  the  property  by  the  pledgee 237a 

If    property  not  delivered — Pledge,  when  good 238 

The  delivery  239 

Constructive  or  symbolical  delivery 240 

CHAPTEE  II. 

PLEDGING  NEGOTIABLE  PAPER, 

Negotiable  paper    241 

An   equitable   assignment 242 

Pledgee  holder  for  value 243 

Whether  a  pre-existing  debt  a  sufficient  consideration  to  constitute 

a  pledgee  a  holder  for  value 244 

CHAPTEE  III. 

NON-NEGOTIABLE  AND  QUASI-NEGOTIABLE   INSTRUMENTS. 

The  nature  and  effect  of  such  instruments 245 

The  pledging  of  corporate  stock 246 

What  deemed  sufficient  delivery  by  pledgor  to  pledgee 247 

Transfer  in  blank 248 

Legal  and  equitable  title 249 

How  affected  by  charter  and  by-laws  of  the  company 250 

The  pledgee  protected  as  against  creditors 251 

The  pledgee  of  stock  by  indorsement  may  transfer  the  title 252 

Bills  of  lading  subject  of  pledge 253 

Delivery  by  the  pledgor 254 

Mere  delivery  of  the  bill  sufficient 255 

Bill  of  lading  to  consignee  with  draft  attached 256 

A  bill  of  lading,  how  far  negotiable 257 

Who  are  bona  fide  holders  of  bills  of  lading 258 

Rights  of  bona  fide  holders 259 

Bona  fide  holder  from  agent  of  owner,  or  one  having  apparent  title  260 

The  warehouse  receipt  as  collateral 261 

Delivery  of  the  receipt  required — Indorsement  in  blank 262 

Pledge  created  by  mere  delivery  of  receipt 263 

Statutes  of  states,  with  reference  to  pledgee  of  warehouse  receipt.  264 

'    '  If  the  receipt  is  made  to  bearer 265 


TABLE  OF  CONTENTS.  XV 

[References  are  to  sections.] 

Insurance  policies  as  collateral 266 

Delivery  a  requisite 267 

■  How  delivered    268 

By  indorsement  in  blank  and  delivery 269 

Notes  and  mortgages,  and  bonds  and  mortgages 270 

Mere  delivery  as  a  pledge 271 

Full,  complete  assignment  and  transfer — a  pledge  or  sale 272 

Pledge  distinguished  from  chattel  mortgage 273 

CHAPTEE  IV. 

PLEDGOR'S  RIGHTS  AND  LIABILITIES. 

The  purpose  of  the  chapter 274 

Pledgor's  rights  275 

Pledgor  of  valuable  securities — Notes,  bonds,  mortgages,  etc 276 

The  pledgor  may,  under  certain  circumstances,  protect  the  pledged 

property  from  injury 277 

Pledgor  may  transfer  the  title  to  the  property 277a 

Pledgor's  interest  subject  to  judicial  process 278 

When  the  debt  secured  is  barred  by  statute  of  limitation 279 

When  will  the  statute  of  limitations  run  against  the  pledgor 280 

The  pledgor's  right  to  redeem 281 

As  to  notice  of  intention  to  redeem 282 

The  pledgor  impliedly  warrants  the  title  of  the  pledged  property. .  283 

Rights,  duties  and  liabilities  of  the  pledgee 284 

The  possession  285 

The  pledge  an  incident  of  the  debt  secured  and  assignable 286 

Assignment  of  secured  debt  passes  equitable  interest  in  pledged 

property  287 

Rights  of  assignee  subject  to  the  contract  of  pledge 288 

May  repledge    289 

Right  to  use  the  pledged  property 290 

Expenses  and  profits 291 

Liability  for  loss  and  damage 292 

Payment  of  debt  releases  pledged  property 293 

A  tender  of  the  amount  due  will  discharge  the  lien  of  the  pledge. .  294 

CHAPTER  y. 

THE  RIGHTS  AND  LIABILITIES  OF  THE  PLEDGOR  AND 

PLEDGEE  OF  CORPOREAL  PROPERTY  AFTER 

DEFAULT. 

The  subject  and  its  discussion 295 

Section  I. 

The  pledgee's  remedies 296 

The  pledge  security  not  lost  by  suit  and  judgment  on  the  debt 297 

Discharge  of  lien  by  tender  is  not  discharge  of  debt 298 


XVI  TABLE   OF   CONTENTS. 

[References   are   to  sections.] 

The  pledgee  may  attach  pledged  property  or  levy  his  execution 

upon  it,  but  waives  the  lien  of  the  pledge 299 

Defense  of  the  pledgor  to  action  of  pledgee  upon  the  debt  secured.  300 

Foreclosure  of  the  pledge  of  corporeal  property 301 

By  sale  under  the  power  contained  in  the  contract  of  pledge 302 

The  sale,  unless  otherwise  allowed  by  contract,  must  be  public...  303 

The  notice  of  sale 304 

The  pledgee  cannot  be  purchaser  at  the  sale 305 

The  utmost  good  faith  demanded  in  the  matter  of  the  notice  of  sale  306 

Pledgor  cannot  compel  pledgee  to  sell  within  a  specified  time.  . . .  307 

Surplus  in  the  hands  of  the  pledgee — Proceeds  of  the  sale 308 

Foreclosure  by  statutory  proceedings 309 

Foreclosure   in   equity 310 

The  notice  and  sale  by  virtue  of  decree 311 

When  the  pledgor  is  insolvent  or  a  bankrupt 312 

Sectiox  II. 

Rights,  remedies  and  liabilities  of  the  pledgor  and  pledgee  of  ne- 
gotiable instruments  and  choses  in  action  after  default 313 

The  English  rule 314 

Recourse  to  the  pledged  security 315 

The  pledgee's  diligence  in  collecting  the  securities 316 

Pledgee  may  recover  in  an  action  on  the  negotiable  securities.  . .  .  317 

Compromise    318 

Sectiox  III. 
Rights  and  liabilities  of  pledgee  of  stocks  and  bonds  of  corpora- 
tions after  default 319 

Stocks  held  by  brokers  purchased  on  margins 320 

Custom,  usage  and  course  of  business 321 

Foreclosure  of  the  pledge  where  stocks  are  held  on  margins 322 

Section  IV. 

The  rights  and  liabilities  of  pledgor  after  default 323 

The  pledgor  may  waive  irregularity 324 

— —  Redemption  in  equity 325 

Equity  in  some  cases  will  take  jurisdiction 326 

Accounting  for  the  pledged  property 327 

Termination  of  the  relation 328 


TABLE  OF  CONTENTS.  XVll 

[References  are  to  sections.] 

PART  THIRD 
INNKEEPERS  AND  BOARDING-HOUSE  KEEPERS 


CHAPTER  I. 

INNS  AND  INNKEEPERS. 

An  inn 329 

Who  are  innkeepers 330 

The  test 331 

Some  essential  characteristics 332 

Restaurants  and  cafes 333 

CHAPTER  II. 
GUESTS. 

Who  are  guests 334 

How  far  traveled,  immaterial 335 

A  guest  or  a  boarder 336 

Length  of  time — Contracts  for  rates  will  not  always  determine ....  337 

Personal  presence  of  the  guest 338 

The  furnishing  of  what  accommodations  necessary 339 

Mere  visitors   340 

The  length  of  time  one  remains,  immaterial 342 

The  purpose  for  which  one  uses  the  inn 342 

Who  must  the  innkeeper  receive  as  guests 343 

Limitations 344 

Liability  for  refusing  to  receive  a  guest 345 

May  refuse  to  receive 346 

WTien  a  guest  is  taken  ill  with  contagious  disease 347 

Disorderly  conduct   348 

CHAPTER  III. 

LIABILITY. 

Innkeeper's  liability  349 

The  extraordinary  liability  on  grounds  of  public  policy 350 

Liability  and  exceptions  analyzed 351 

Where  the  loss  is  occasioned  by  accidental  fire  and  not  in  any  way 

the  result  of  fault  or  neglect  of  the  innkeeper 352 

By  act  of  God  or  the  public  enemy 353 

By  irresistible  force  without  negligence  or  fault  on  the  part  of  the 

innkeeper   354 

Forcible  robbery,  riots,  etc. — Diligence 355 

If  the  loss  is  occasioned  by  force  from  within 356 

By  reason  of  the  inherent  nature  of  the  property 357 

Through  the  fault  of  the  guest,  his  servants  or  companions 358 


XVIU  TABLE   OP   CONTENTS. 

[References  are  to  sections.] 

Reasonable  regulations  of  the  inn 359 

For  what  property  liable 360 

Must  be  a  guest  of  the  inn  and  the  property  within  the  inn 361 

Infra  hospitium 362 

Loss  by  theft 363 

If  a  boarder,  not  a  guest 364 

Property  of  a  third  person 365 

Liable  to  corporation  for  loss  of  agent's  goods 366 

Exception — ^Goods  for  sale  or  show 367 

Liability  for  safety  and  protection  of  the  guests 368 

Defective  or  unsound  condition  of  the  premises 369 

Injuries  from  fire 370 

Unsanitary  condition  of  the  inn  and  unwholesome  food 371 

Limiting  liability  372 

Innkeeper  liable  as  ordinary  bailee 373 

Liable  as  gratuitous  bailee 374 

CHAPTEE  IV. 

COMPENSATION  AND  LIEN  OF  THE  INNKEEPER. 

Compensation — Lien    375 

The  lien  a  common-law  lien 376 

Amount  of  compensation 377 

If  the  guest  an  infant 378 

The  property  of  third  persons 379 

Same  subject 380 

The  guest  a  servant,  agent  or  bailee  of  the  owner 381 

Where  the  property  is  animate 382 

Where  the  guest  has  wrongfully  possessed  himself  of  the  property  383 

The  lien  of  the  innkeeper  fixed  by  statute 384 

The  lien  lost  or  waived 385 

Cannot  be  revived 386 

Boarding-house  keeper 387 


PART  FOUR 
POSTOFFICE  DEPARTMENT 


CHziPTER  I. 

POSTAL  SEJRVICE. 

Liability  of  postoffice  department 388 

Postmasters  389 

Liability    390 

Carriers  of  mail 391 


TiVBLE  OF  CONTENTS.  XIX 

[References   are  to  sections.] 


PART  FIVE 
CARRIERS 


CHAPTER  I. 

CARRIERS— GENERALLY. 

Definition   392 

As  to  the  history  of  carriers 393 

The  importance  and  scope  of  the  subject 394 

Carriers  strictly  a  bailment  relation 395 

Carriers  are  of  two  kinds 396 

Private  or  special  carriers 397 

Duties  and  liabilities  of  private  and  special  carriers 398 

The  carriage  of  goods,  or  property,  or  passengers  for  reward 399 

Increasing  or  diminishing  liability  by  contract 400 

Can  he  diminish  liability 401 

When  excused  from  liability  if  no  contract 402 

Compensation  and  lien  of  the  private  carrier 403 

Lien   404 

Special  or  private  carriers  without  hire — Gratuitous  service 405 

CHAPTER  II. 
PUBLIC  OR  COMMON  CARRIERS. 

Definition  406 

First  essential  requisite — The  important  and  distinguishing  essen- 
tials      407 

Second  essential  requisite — Determinate  of  the  relation 408 

The  true  test 409 

May  limit  the  employment  to  certain  kinds  of  property 410 

Third  essential  requisite — Carriage  must  be  for  hire 411 

Carriers  by  water  as  well  as  by  land 412 

Who  are  common  carriers 413 

Tugs  and  tow-boats 414 

Contrary  holdings 415 

Ferry-boats  416 

Carriers  by  land 417 

Hackmen  and  omnibus  men 41& 

Truckmen,  cartmen  and  owners  of  wagons 419 

•  Street-car   companies    420 

Express  companies 421 

Fast-freight  lines,  dispatch  companies,  etc 422 


XX  TABLE   OP   CONTENTS. 

[References  are  to  sections.] 

Transfer  companies 423 

Railroad  companies 424 

Receivers  and  trustees 425 

■ Not  all  railroad  companies  are  common  carriers 426 

Who  are  not  common  carriers 427 

CHAPTER  III. 

CARRIERS  OF  GOODS— SOME  ESSENTIALS  THAT  FIX  THE  LIA- 
BILITY OF  COMMON  CARRIERS. 

Object  of  the  chapter — Some  presumptions 428 

Certain  facts  must  be  proven 429 

Delivery  of  the  property  for  transportation 430 

The  place  of  delivery 431 

Usage  and  custom 432 

Actual  notice  of  deposit  of  goods 433 

Time  of  delivery 434 

By  whom  must  delivery  be  made  and  to  whom 435 

To  whom  must  delivery  be  made 436 

Facts  relied  upon  to  show  apparent  authority  must  be  clear. .  437 

Agents  authorized  to  receive 438 

Constructive  delivery 439 

Rules  permitting  constructive  delivery  must  be  applied  with  great 

caution 440 

CHAPTEE  IV. 

CARRIERS  OF  GOODS— FIXING  THE  LIABILITY  OF  THE 
CARRIER. 

The  object  of  the  chapter 441 

What  must  the  carrier  receive  and  carry 442 

Reasonable  regulations 443 

Other  legal  excuses  for  refusing  to  receive  goods 444 

Carrier  may  fix  time  and  place  for  receiving 445 

That  the  carrier  has  no  facilities  for  carrying  the  goods 446 

EJxtraordinary  occasions — Press  of  business 447 

Carrier  not  permitted  to  arbitrarily  refuse  to  receive  and  ship. . . .  448 
Equitable  proceedings  to  enforce  the  receiving  and  shipping  of 

freight    449 

Acceptance  by  the  carrier 450 

When  delivery  and  acceptance  completed 451 

A  bill  of  lading  or  receipt  not  a  requisite  to  bind  carrier 452 

Action  for  refusal  to  accept  and  transport  goods 453 

Tender  of  the  goods  and  payment  of  freight 454 

Who  may  sue 455 

The  liability 456 

Duty  to  provide  proper  vehicles 457 


TABLE  OF  CONTENTS.  XXI 
[References  are  to  sections.] 

CHAPTER  V. 

FIXING  LIABILITY  OF  CARRIER— THE  BILL  OF  LADING 

Description  and  office  of  the  bill  of  lading 458 

Its  negotiability , 459 

The  consignor  consigns  goods  to  himself 460 

The  bill  of  lading  with  draft  attached 461 

Bill  of  lading  as  proof 462 

Authorities  not  entirely  harmonious 463 

Conclusiveness  as  to  condition,  weight,  contents  or  value 464 

By  whom  issued 465 

CHAPTEE  VI. 

LIABILITY  AND   LIMITATIONS   UPON   THE   LIABILITY   OF   THE 
COMMON  CARRIER. 

Liability  of  the  common  carrier 466 

Reasons  for  extraordinary  liability 467 

Inanimate  and  animate  freight 468 

I.   WilEN   THE   Loss   OB   INJUBY   IS   CAUSED   BY  THE   ACT   OF   GOD. 

The  act  of  God 469 

Does  not  always  excuse  the  carrier  from  all  care 470 

The  act  of  God  must  be  the  conclusive  and  proximate  cause 471 

What  will  and  what  will  not  excuse — Summary 472 

Burden  of  proof 473 

II.  By  the  Public  Enemy. 

The  public  enemy 474 

The  diligence  required  on  the  part  of  the  carrier 475 

Diligence,  even  though  the  property  is  injured  or  destroyed  after 

the  event  has  occurred 476 

Strikers,  rioters  and  robbers  not  the  public  enemy 477 

III.  Where  the  Loss  oe  Injury  is  the  Result  of  the  Acts  of  the 

Shipper. 

Reasons  of  the  liability  of  the  carrier 478 

Contributory  negligence  479 

Improperly  marking  goods  by  the  consignor 480 

Goods  improperly  marked  or  loaded 481 

Neglect  of  the  shipper  to  disclose  contents  or  value 482 

Loss  from  mistake  or  intermeddling  on  the  part  of  the  shipper. . .  483 

Negligence  of  the  carrier 484 

IV.  Where  the  Loss  ob  Injuby  is  Caused  by  the  iNHEjEiEasT  Nature 

of  the  Goods. 

The  exception 485 

Animate  freight 486 


XXU  TABLE   OP   CONTENTS. 

[References  are  to  sections.] 

v.  Caebting  of  Live  Stock. 

The  exception  applies 487 

Michigan  rule 488 

The  duty  of  the  common  carrier 489 

Statutes  of  United  States  with  reference  to  duties  of  the  carrier. .  490 

The  shipper  must  deal  fairly  with  the  carrier 491 

VI.  When  the  Loss  ob  Injury  is  Occasioned  fkom  the  Exercise  of 
Public  Authority. 

The  reasons  for  the  exception 492 

CHAPTER  VII. 

WHEN   THE  DAMAGE  OR   INJURY   IS   THE  RESULT  OP   DEVIA- 
TION OR  DELAY. 

Implied  undertaking  of  the  carrier 493 

Notice  to  the  carrier 494 

What  is  unreasonable  delay — How  avoided 495 

Reasonable  diligence 496 

Delay  occasioned  by  deviation  from  route 497 

Loss  or  injury  occurring  on  deviated  route — Act  of  God  or 

public  enemy,  etc 498 

Often  duty  of  the  carrier  to  delay  or  deviate  from  course. . . .  499 

When  delay  and  deviation  on  account  of  strikes  or  riots 500 

May  discriminate  as  to  shipping  perishable  goods 501 

Duty  of  carrier  as  to  goods  after  disaster 502 

CHAPTER  VIII. 

CONTRACTS  REGULATING  THE  CARRIAGE  OF  GOODS. 

The  object  of  the  chapter 503 

Contracts  imposing  obligations  upon  the  carrier 504 

If  the  contract  is  to  carry  by  a  certain  route  or  in  a  certain  man- 
ner    505 

By  a  certain  time 506 

If  the  contract  is  to  transport  by  water  it  cannot  be  fulfilled 

by  carrying  by  rail 507 

When  the  change,  deviation  or  delay  from  the  stipulations  in  the 

contract  is  the  fault  of  the  shipper 508 

Contracts  limiting  the  liability  of  the  carrier 509 

Cannot  limit  liability  when  the  loss  is  the  result  of  the  negligence 

of  the  carrier  or  his  servants 510 

Rule  in  different  states  as  to  limitation  for  negligence 511 

Limiting  liability  as  to  amount 512 

The  consideration  of  contracts  limiting  liability 513 

Option  to  the  shipper  to  accept  contract  limiting  liability.  . . .  514 

Contract  must  be  reasonable,  fair  and  without  fraud 515 


TABLE  OF  CONTENTS.  XXI 11 

[References  are  to  sections.] 

The  contract,  how  made 516 

Contract  limiting  the  time  in  which  to  present  claim  or  commence 

suit 517 

Contract  limiting  liability  need  not  be  in  writing 518 

Construction  of  the  contract  limiting  liability 519 

Contracts  implied  from  notice 520 

Further  consideration 521 

General  notice  written  or  printed  upon  the  receipt  or  bill  of 

lading 522 

Representations  of  the  shipper,  fraudulent  or  otherwise 523 

When  the  contract  limiting  liability  inures  to  the. benefit  of  the 

connecting  carrier 524 

Limiting  liability  in  England,  especially  by  notice 525 

The  result  of  this  act 526 

CHAPTER  IX. 

LIABILITY    OF    THE    COMMON    CARRIER     (CONTINUED)— CON- 
NECTING CARRIERS. 

Liable  only  over  his  own  line  except  when  contract  is  for  further 

liability    527 

If  there  is  no  contract  as  to  liability  beyond  its  own  line 528 

The  English  rule 529 

Decisions  of  states  not  harmonious 530 

Some  conditions  and  relations  from  which  contract  for  through 

shipment  may  be  implied 531 

Who  are  connecting  carriers 532 

The  relations  between  the  shipper,  the  initial  carrier  and  the  con- 
necting carrier 533 

The  duty  of  the  connecting  carrier 534 

Authority  to  make  contract  binding  connecting  carriers 535 

Actions  for  loss  or  damage 536 

CHAPTER  X. 

COMPENSATION,  AND  HEREIN  OF  DISCRIMINATION  AND  LIEN 
OF  THE  CARRIER. 

Compensation    537 

Amount  depends  generally  on  goods  delivered 538 

Carrier's  special  security  in  and  right  to  possession  of  goods 539 

— ■ —  Carrier  may  protect  his  possession 540 

The  carrier  may  insure  the  goods 541 

When  can  the  carrier  sell  the  goods 542 

The  amount  charged 543 

Right  of  carrier  to  collect  its  advances  to  connecting  carriers 544 

Who  is  liable  to  the  carrier  for  the  freight 545 


XXIV  TABLE   OP   CONTENTS. 

[References  are  to  sections.] 

Where  the  freight  is  only  carried  a  part  of  the  distance  contracted 

for — Pro  rata  itineris 546 

Where  goods  shipped  against  the  will  of  the  owner,  as  by  one  not 

having  the  right  to  ship 547 

As  TO  Discrimination. 

Law  forbidding  applies  to  all  branches  of  carrier's  business 548 

Relates  to  facilities  for  shipment 549 

The  discrimination  that  is  forbidden 550 

Regulation  by  statute  of  states 551 

The  interstate  commerce  act 552 

The  Lien  of  the  Carried. 

Similar  to  the  lien  of  the  bailee — Special,  not  general 553 

When  does  the  lien  attach 554 

When  shipment  made  by  one  without  authority 555 

For  what  charges  will  the  lien  attach 556 

The  contract  for  shipment  must  be  fulfilled 557 

The  lien  how  lost,  satisfied  or  discharged 558 

•  Lien  satisfied 559 

Lien  discharged 560 

CHAPTER  XI. 

TERMINATION  OF  THE  CARRIER'S   LIABILITY— HIS   LIABILITY 
AS  A  WAREHOUSEMAN  AND  HOW  DISCHARGED. 

Delivery  of  the  goods  to  the  consignee 561 

The  bill  of  lading 562 

Rules  as  to  the  delivery  applicable  to  all  carriers 563 

The  requirements  of  the  carrier  upon  arrival  of  the  goods  at  des- 
tination     564 

Express  Companies. 

Requirements  as  to  delivery 565 

"When  an  expres  company  becomes  warehouseman 566 

Express  company's  liability  as  warehouseman 567 

Duty  of  express  companies  when  goods  refused  by  consignee.  568 

Goods  sent  C.  O.  D 569 

Where  consignee  fails  to  receive  the  goods  or  refuses  to  receive 

them    570 

Right  to  inspect  the  goods  sent  C.  O.  D 571 

Carrier  may  assist  in  preventing  fraud  on  the  part  of  consignor. . .  572 

Carriers  by  Water. 

Termination  of  liability 573 

Carrier  must  be  reasonably  diligent  in  giving  notice  to  consignee. .  574 

Must  provide  suitable  place  for  landing  and  caring  for  goods 575 

Notice  must  be  actual,  and  for  a  removal  of  goods  at  a  proper 

time  if  time  fixed 576 


TABLE  OF  CONTENTS.  XXV 

[References  are  to  sections.] 

Contract — Usage — Course  of  dealing 577 

Usage — Course  of  dealing 578 

Consignee  cannot  prolong  liability  as  carrier 579 

Cakriers  bt  Railroad. 

Termination   of  liability 580 

Three  distinct  views 581 

The  Massachusetts  rule 582 

The  New  Hampshire  rule 583 

The  rule  demanding  notice  to  consignee 584 

What  will  excuse  delivery 585 

Stoppage  in   transitu 586 

The  law  favors  the  right 587 

Some  requisites  to  the  right  to  exercise  stoppage  in  transitu 588 

How  exercised — Notice  by  whom — To  Whom 589 

How  can  the  right  be  defeated 590 

Lien  of  the  carrier  for  freight  has  priority 591 

Stoppage  in  transitu — Duty  of  carrier — Termination  of  liability..  592 


PART  SIX 

CARRIERS  OF  PASSENGERS 


CHAPTER  I. 

THE  RELATION— WHO  ARE  PASSENGERS. 

The    relation 593 

Who  Are  Passengers. 

.Definition    594 

The  status  fixed  more  or  less  by  intention 595 

Not  essential  that  the  person  should  be  in  the  vehicle  of  the  carrier  596 

EJxpress  messengers  and  mail  agents 597 

Mail  agents  and  passengers 598 

Drovers   599 

Workmen  and  employees 600 

Carrier  must  receive  the  person  as  a  passenger 601 

Persons  violating  reasonable  regulations 602 

Prepayment  of  fare 603 

Fraud  on  carrier 604 

Termination  of  the  relation 605 

Passengers  on  street-cars 606 

Reasonable  regulations 607 

Must  occupy  usual  place  provided  by  the  company 608 


XXVI  TABLE   OF    CONTENTS. 

[References  are  to  sections.] 

CHAPTEE  II. 

WHO  MUST  THE  CARRIER  ACCEPT  AND  CARRY,  AND  CERTAIN 
DUTIES  OF  CARRIERS  AND  PASSENGERS. 

Qimsi-pxihhc  servants 609' 

Exceptions  to  the  general  rule 610 

Carrier  must  protect  passengers 611 

Right  to  separate  passengers  according  to  sex 612 

Separation  of  races  a  reasonable  regulation 613 

Certain  Duties  Incumbent  Upon  the  Carriee. 

Implied  obligation 614 

Vehicles,  machinery,  roadways,  tracks,  etc 615 

Stational  facilities &1G 

Duty  in  the  managing  and  running  its  trains  or  vehicles 617 

Tlie  duty  of  passengers 618. 

CHAPTEE  III. 

THE  PASSENGER  CARRIER'S  LIABILITY. 

I.  General  Principles  Governing  Liability. 

The  purpose  of  the  chapter 619 

The  basis  of  the  liability 620 

Diligence  in  the  employment  of  servants 621 

Safe  and  sufficient  means  of  transportation 622 

Carrier's  liability  for  injury  of  servants  resulting  from  negligence 

of  f ellov7  servants 623 

•  The  rule  stated — Its  origin 624 

When  the  master's  negligence  contributes  to  the  injury 625 

When  the  injury  is  the  result  of  an  incompetent  fellow  servant. . .  .  626 
Superior  servant  rule  as  contra-distinguished  from  the  alter  ego  or 

vice  principal  doctrine 627 

Act  of  congress  to  regulate  liability 628 

Passenger  elevators 629 

Bound  to  adopt  most  approved  machinery 630 

Latent  defects 631 

English  rule 632 

Defects  discoverable  by  manufacturer 633 

II.  Liability  Growing  Out  of  Duty  to  Passenger  While  in  Transit. 

The  degree  of  care  required 634 

Depots — Waiting  rooms — Approaches  and  exits  from  premises  and 

vehicles   635 

Same  subject 636 

Overloading  and  overcrowding  vehicles 637 

Liability  of  carrier  for  abuse  of  passengers 638 

Fares — Tickets — Contracts  for  carriage 639 


TABLE  OF  CONTENTS.  XXVll 

[References  are  to  sections.] 

Where  the  carrier  or  agent  is  at  fault 640 

— —  Exhibition  and  surrender  of  tickets 641 

Lost  or  mislaid  tickets 642 

Stop-over  tickets — Time  limit — Train  limit,  etc 643 

Tickets  over  connecting  lines 644 

Delay  by  wreck  or  by  the  fault  of  the  carrier 645 

Tickets,  passes  and  other  transporation  fraudulently  obtained  or 

fraudulently    used 646 

Sleeping-car    companies    647 

Not  liable  as  innkeepers 648 

III.  Ejection  of  Passengers  and  Intruders  from  the  Vehicles  of  the 

Carrier. 

The  right — The  cause — The  manner — ^By  whom 649 

The  causes  numerous 650 

Passengers'  reliance  upon  statements  and  promises  of  serv- 
ants and  agents  of  the  carrier 651 

Tendering  fare  to  avoid  ejection 652 

The  manner  of  ejecting 653 

The  condition  of  the  passenger  must  be  taken  into  account 654 

IV.  When  the  Carrier  is  Excused. 

When  caused  by  the  act  of  God 655 

The  public  enemy 656 

Contributory    negligence 657 

Strangers,  trespassers,  intruders 658 

Failure  to  warn  passengers  of  danger 659 

A  question  of  fact  for  the  jury  or  of  law  for  the  court 660 

Whether  a  question  of  law  or  fact 661 

Same   subject 662 

When  excused   663 

Failure  to  perform  contract  of  carriage  within  stipulated  or  rea- 
sonable  time 664 

CHAPTER  IV. 

LIMITATION  OF  LIABILITY. 

Three  classes  of  holdings  by  the  court 665 

The  first  class:    Carrier  cannot  limit  liability  where  damage  re- 
sults from  his  own  or  servant's  negligence 666 

The  second  class:    Carrier  can  limit  liability  even  though  damage 

the  result  of  his  own  or  servant's  negligence 667 

The  third  class:    May  limit  for  negligence  but  not  for  gross  negli- 
gence      668 

The  weight  of  authority 669 

Free  passes — Limitation  of  liability  for  injuries  to  persons  riding 

on    670 

Limitations  growing  out  of  that  which  is  incident  to  the  carriage. .  671 
c 


XXVlll  TABLE   OF   CONTENTS. 

[Referencea  are  to  sections.] 

CHAPTER  V. 

BAGGAGE  OR  THE  PASSENGER'S  ET'FECTS. 

Kinds  of  baggage 672 

Ordinary  baggage — Definition 673 

(1)  The  station  in  life  of  the  passenger 674 

(2)  The  business  or  occupation  of  the  traveler 675 

(3)  Object  of  the  journey 676 

(4)  The  effects  must  be  personal  to  the  traveler 677 

(5)  Must  be  reasonable  in  amount  for  the  journey  and  its  objects.  678 
What  is  not  baggage 679 

Sample  trunl<;s  or  commercial  effects 680 

Payment  of  excess  baggage 681 

Reasonable  regulation    ) 682 

Good  faith 683 

The  owner  of  the  baggage  should  be  a  passenger 684 

Should  the  owner  accompany  the  baggage? 685 

Baggage  of  one  riding  upon  a  free  pass 686 

Liability  of  the  carrier  for  baggage  under  his  exclusive  control 687 

Hand  baggage 688 

Sleeping-car  companies 689 

Liability  for  theft  of  servants 690 

A  high  degree  of  ordinary  diligence  required 691 

Mixed  custody  of  passenger  and  carrier — Is  the  liability  of  steam- 
ship company  and  innkeeper  the  same? 692 

The  baggage  of  a  steerage  passenger 693 

Termination  of  liability 694 

Failure  of  carrier  to  deliver  baggage 695 

CHAPTER  V. 
ACTIONS  AGAINST  COMMON  CARRIERS. 

I.  AarioNS  Against  Common  Cabbieibs  of  GtOods. 

The  basis  of  the  actions 696 

As  to  what  actions  will  lie 697 

Even  if  there  is  a  special  contract 698 

The  advantages  of  the  action  ex  delicto 699 

For  refusal  to  carry  the  goods 700 

The    parties 701 

The  consignee 702 

One  having  a  special  property  in  the  goods 703 

The  consignor 704 

The  defendant 705 

THE  PLEADINGS. 

Pleadings  follow  general  niles 706 

Defenses  707 


TABLE  OF  CONTENTS.  XXIX 

[References  are  to  sections.] 
THE  PROOFS. 

What  proofs  should  be  adduced 708 

Negligence    709 

Defendant's   proofs 710 

DAMAGES. 

Of  what  they  generally  consist 711 

Actual,  exemplary,  punitive  or  vindictive  damages 712 

Exemplary  damages  confined   to  liberal,  compensatory  or  actual 

damages    713 

Liability  of  principal  or  master  for  acts  of  agents  or  servants  714 

Damages  for  refusal  to  receive  and  transport 715 

For  loss  or  injury  in  transit 716 

Shipper  bound  by  the  value  placed  upon  his  goods  when  shipped. .  717 

Where  the  goods  are  not  merchandise  and  not  marketable 718 

■  Goods  shipped  to  be  delivered  on  contract  of  sale 719 

Failure  to   deliver   at   time   specified   or   within    reasonable 

time — Reasonable    delay 720 

Failure  to  deliver  and  misdelivery 721 

II.  Actions  Against  Carriers  of  Passengers. 

Survival  of  actions  for  personal  injuries 722 

When  the  injury  does  not  result  in  death 723 

THE   PLEU.DINGS. 

Based  upon  what 724 

The  answer  or  plea  of  the  defendant 725 

THE  EVIDENCE. 

What  must  be  proven 726 

Presumption  of  negligence 727 

Contributory    negligence 728 

damages. 

General  rules  applicable 729 

Proximate  or  remote  consequences 730 

Actual,  exemplary,  punitive  or  vindictive  damages 731 


TABLE  OF  CASES. 


[References  are  to  sections.] 


A. 


Abbott  V.  Bradstreet,   692. 
Abbott  V.  Oregon  R.  Co.  657. 
Abel     V.     Northampton     Traction 

Co.  657. 
Abram  v.  Piatt,  437. 
Acton    V.    Castle    Mail-packet    Co. 

639. 
Acton  V.  Reed,  368. 
Adams  v.  Buckland,   515. 
Adams  v.  Clem,  373. 
Adams  v.  Hannibal,  etc.  Co.,  663. 
Adams    v.    N.    J.    Steamboat    Co. 

333,  692. 
Adams  v.  Scott,  492. 
Adams  Express  Co.  v.  Harris,  558. 
Adams  Express  Co.  v.  Schlessinger, 

463. 
Addyston  Pipe,  etc.  Co.  v.  United 

States,  628. 
^tna  Ins.  Co.  v.  Jackson,  177. 
Agawam  Bank  v.  Strever,  235. 
Aiken  v.  Chicago,  etc,  R.  Co.  452. 
Ainsworth  v.  Boweu,  307. 
Akers  v.  Overbeck,  123. 
Alabama,  etc.  Co.  v.  Jones,  657. 
Alabama,   etc.   R.   Co.   v.   Quarles, 

471. 
Albian  v.  Presby,  362. 
Aldrich  v.  Boston,  etc.  Co.  214. 
Aldrich  v.  Great  Western  R.  Co. 

525. 
Alexander,   etc.   R.   Co.  v.   Burke, 

287,  302. 
Allan  V.King,  243. 
Allan  V.  Railway  Co.  589. 
Allen  V.  Railway  Co.  648. 
Allen  V.  Williams,  255. 


Allis  V.  McLean,  494. 

Alt  V.  Weidenberg,  65. 

Alton,  etc.  Co.  v.  Oiler,  637. 

Alvord  V.  Davenport,  46,  375. 

Ambler  v.  Ames,  297. 

American  Express  Co.  v.  Phillips, 

488. 
American   Express  Co.  v.   Schier, 

509. 
American  Express   Co.   v.    Smith, 

485. 
American   Express    Co.    v.    Stack, 

56L 
American,  etc.  Express  Co.  v.  Wolf, 

568. 
American  Roofing  Co.  v.  Memphis, 

etc.  Co.  704. 
American  Steamship  Co.  v.  Bryan, 

692. 
American    Sugar    Refining    Co.  v. 

McGhee,  534. 
American     Trans.    Co.    v.    Moore, 

509,  518. 
Anderson  v.  Bennett,  624. 
Anderson,  et  al.  v.   Carothers,   et 

al.,  276. 
Anderson  v.  City  R.  Co.  657. 
Anderson  v.  Louisville,  etc.  R.  Co. 

613. 
Anderson  v.  Portland,  etc.  Co.  462. 
Anderson  v.  Scholey,    727. 
Andrews  v.  Richmond,  24. 
Androscoggin    R.    Co.    v.    Auburn 

Bank,  291. 
Angle  v.  M.  M.  Ry.  Co.  530. 
Annis  v.  Railroad  Co.  668,  670. 
Apsey  V.  Railway  Co.  660. 
Arains  v.  Brickley.  64. 
Arbuckle  v.  Thompson,  702. 


XXXll 


TABLE    OF    CASES. 


[References  are  to  sections.] 


Archer  v.  Ft.  Wayne,  etc.  Co.  608. 
Archer  v.  McDonald,  141. 
Armour  et  al.  v.  Mich.  Cent.  R.  Co. 

463. 
Armstrong  v.  Chicago,  etc.  R.  Co. 

544. 
Armstrong  v.  McLean,  293. 
Arnold  v.  Producers'  Fruit  Co.  214. 
Arnold  v.  Railroad  Co.  602. 
Arondale  v.  Morgan,  221. 
Ashbey  v.  West,  61. 
Ashman  v.  Railroad  Co.  625. 
Ashmore   v.    Pennsylvania   Steam- 
towing  Co.  414,  509. 
Ashton  V.  Detroit  City  R.  Co.  663. 
Atchison,  etc.  R.  Co.  v.  Gants,  648. 
Atchison,  etc.  Co.  v.  Holloway,  595, 

657. 
Atchison,   etc.   R.   Co.   v.   Shrivor, 

561. 
Atchison,    Topeka,   etc.    R.    Co.    v. 

Dill,  514. 
Atchison,    T.    &    S.    F.    R.    Co.    v. 

Temple,  510. 
Atkins  V.  Colby,  586. 
Atkins  V.  Gamble,  60. 
Atkins  V.  Moore,  47. 
Atkinson  v.  Abraham,  369. 
Attorney-General  v.  Chicago  &  N. 

W.  R.  Co.  550. 
Atwater  v.  Delaware,    etc.    R.    Co. 

609. 
Atwater  v.  Sawyer,  343,  348,  368. 
Atwell  V.  Miller,  462. 
Audenreid  v.  Philadelphia  Ry.  Co. 

549. 
Aurbach  v.  Railway  Co.  644. 
Aurentz  v.  Porter,  197. 
Austin  V.  Curtis,  313. 
Avinger  v.  S.  C.  R.  Co.  426. 

B. 

Babcock  v.  L.  S.  etc.  R.  Co.  524. 
Babcock  v.  People's  Savings  Bank, 

176. 
Babcock  v.  Wyman,  252. 
Bacharach     v.     Chester     Freight 

Line,  553. 


Bacon    v.    New   York,    etc.    Bank, 

109. 
Baily  v.  Colby,  79,  129,  211,  286. 
Bailey  v.  Damon,  554. 
Bailey  v.  Gould,  271, 
Baird  v.  Daly,  128. 
Baker  v.  Bates,  70. 
Baker  v.  Born,  24. 
Baker  v.  Briggs,  307. 
Baker  v.  Dessaner,  352, 
Baker  v.  Drake,  322. 
Baker  v.  Hoag,  70. 
Bakman  v.  Povler,  294. 
Baldwin  V.Am.  Exp.  Co.  561. 
Baldwin  v.  Bradley,  234,  237. 
Balhoff  V.  Michigan  Cent.  R.  Co. 

625. 
Ball  V.  Chesapeake  &  Ohio  Ry.  Co. 

638. 
Ball  V.  Liney,  60. 
Ball  V.  Stanley,  294 
Ballentine  v.  M.  N.  R.  Co.  447,  496. 
Ballou  V.  Earle,  511. 
Baltimore  v.  Brown,  462. 
Baltimore,   etc.   Co.    v.    Crawford, 

513. 
Baltimore,  etc.  Co.  v.  Worthington, 

727. 
Baltimore  &  H.  Ry.  Co.  v.  State, 

629.    ' 
Baltimore,   etc.   R.   Co.   v.   Baugh, 

627,  628. 
Baltimore,    etc.   R.   Co.    v.    Doyle, 

509. 
Baltimore,  etc.  R.  Co.  v.  Fox,  509. 
Baltimore,  etc.  R.  Co.  v.  Henthorn, 

626. 
Baltimore  R.  Co.  v.  State,  41. 
Baltimore  &  Ohio  Ry.  Co.  v.  Bar- 

ger,  638. 
Baltimore  &  Ohio  R.  Co.  v.  Express 

Co.  544. 
Baltimore     &     Ohio     R.     Co.     v. 

Humphrey,  561. 
Baltimore  &  Ohio  R.  Co.  v.  State, 

598. 
Baltimore  &  Ohio  R.  Co.  v.  Voight, 

597. 
Bambrick  v.  Webster  Ass'n,  82. 


TABLE   OF   CASES. 


XXXI 11 


[References  are  to  sections.] 


Bancroft  v.  Peters,  559. 

Bank  v.  Brown,  679,  687. 

Bank  V.  Jackson,  300. 

Bank  v.  Marshall,  300. 

Bank  v.  Roberts,  317. 

Bank    of    Alexandria    v.    Herbert, 

312. 
Bank  of  America  v.  McNeil,  249. 
Bank  of  Buffalo  v.  Kortright,  250. 
Bank  of  Chadron  v.  Anderson,  242. 
Bank  of  111.  v.  Baker,  313. 
Bank  of  Kentucky  v.  Adams,  422. 
Bank  of  Oswego  v.  Doyle,  208. 
Bank  of  Rochester  v.  Colt,  174. 
Bank  of   Staten   Island   v.   Silvie, 

242,  291. 
Bar  V.  Cain,  316. 
Barber  v.  Abendroth,  190. 
Barbar  v.  Hathaway,  252. 
Barker  v.  Havens,  553. 
Barnard  v.  Campbell,  260. 
Barnes,  etc.  Co.  v.  Block  Bros.  3. 
Barnes  v.  Bradley,  297. 
Barnes  v.  McCrea,  24. 
Barney  v.  O.  B.  &  H.  S.  S.  Co.  610. 
Barnowski  v.  Helson,  727. 
Barron  v.  East  Boston  Ferry  Co. 

630. 
Barron  v.  Eldridge,  186,  187,  439, 

567. 
Barron  v.  Landes,  52. 
Bartlett  v.  Carnley,  554. 
Bartlett  v.  Pacific,  etc.  Co.  509. 
Bartlett  v.  Walter,  177. 
Bass  V.  Railway  Co.  612. 
Bassett  v.  Railway  Co.  187. 
Batavia  Bank  v.  N.  Y.  R.  Co.  463. 
Bates  V.  Bigby,  3. 
Bates  V.  Railway  Co.  667. 
Batton  V.  Railroad  Co.  638. 
Baugh  V.  Kirkpatrick,  278. 
Baxter  v.  Hartford  Ins.  Co.  177. 
Bayles  v.  Kansas  Pac.  R.  Co.  550. 
Beal  V.  South  Dover  R.  R.  Co.  39, 

150. 
Bealle  v.  Southern  Bank,  243. 
Beard  v.  Dedolph,  242. 
Beard  v.  111.  Cent.  R.  Co.  452,  457. 
Beatty  v.  Silveston,  326. 


Becker  v.  Hallgarten,  255,  590. 
Becker  v.  Haynes,  367. 
Becker  v.  Penn.  R.  Co.  189. 
Becker  v.  Warner,  358. 
Beckwith  v.  Sibley,  296. 
Bedington  v.  Harrisburg,  etc.  Co. 

634. 
Bedle  v.  Morris,  636. 
Beecher  v.  Wells  Flouring  Mill  Co. 

250. 
Beers  et  ux.  v.  Railway  Co.  685. 
Beesley  v.   F.  W.   Wheeler  &  Co. 

625,  627. 
Belden  v.  Perkins,  286,  289. 
Belding  v.  Manley,  317. 
Belfast  v.  Railway  Co.  679. 
Belger  v.  Dinsmore,  512,  522. 
Beller  v.  Schultz,  108. 
Bellows  V.  Wells,  226. 
Bells  V.  Chicago,  etc.  R.  Co.  489. 
Bellsdyke  v.  North  British  R.  Co. 

550. 
Benedict  v.  Schaettle,  588. 
Bennett    v.    American    Trans.    Co. 

452. 
Bennett  v.  Dutton,  520,  609. 
Bennett  v.  L.  S.  &  M.  S.  R.  Co.  500. 
Bennett  V.  Melor,  340,  366. 
Bennett  v.  O'Brien,  108. 
Bennett  v.  The  Guiding  Star,  430. 
Benzing  v.  Steinway,  625. 
Berkshire  Woolen  Co.  v.  Proctor, 

337,  349,  352,  360,  366. 
Bernard  v.  Knobbs,  62. 
Bernstein  v.  Sweeney,  372. 
Berry  v.  Southern  R.  Co.  430. 
Berry  v.  Utica,  etc.  Co.  657. 
Berry  v.  W.  Va.  R.  Co.  513. 
Betts  V.  Chicago,  etc.  R.  Co.  489. 
Bevan  v.  Waters,  161. 
Bevis  V.  Railway  Co.  647. 
Bibbs,  etc.  Co.  v.  Atchinson,  etc.  R. 

Co.  471,  493. 
Biddle,  Dean  &  Co.  v.  N.  Y.,  L.  E. 

&  W.  R.  Co.  404. 
Biebinger    v.    Continental    Bank, 

293. 
Bigby  V.  Coombs,  139. 
Bigelow  V.  Heaton,  558. 


XXXIV 


TABLE  OF  CASES. 


[References  are  to  sections.] 


Bigelow  V.  Walker,  300. 

Bigelow  V.  West  End   Street  Car 

Co.  606. 
Biggs  V.  Lawrence,  229. 
Billings  V.  Jane,  242. 
Bingham  v.  Rogers,  520. 
Birmingham,  etc.  R.  Co.  v.  Baird, 

634. 
Bishawaite  v.  Penn.  R.  Co.  528. 
Bissell  V.  New  York  Cent.  R.  Co. 

411,  487. 
Bissell  V.  Pierce,  75,  161,  163,  462, 

544. 
Bissell  V.  Railway  Co.  667,  670. 
Bixby  V.  Dunlap,  713. 
Black  V.  Ashley,  189,   581. 
Black  V.  Baxendale,  574. 
Black  V.  Brennan,  379,  380. 
Black  V.  Chicago,  B.  &  Q.  R.  Co. 

470. 
Black  V  Goodrich  Trans.  Co.  519. 
Black  V.  Wabash,  etc.  R.  Co.  509. 
Blackmore    v.    Railroad    Co.    597, 

606. 
Blackstock  v.  N.  Y.  &  E.  N.  R.  574. 
Blair  v.  Erie  R.  Co.  597. 
Blaisdell  v.  Railway  Co.  187. 
Blake  V.  Buchanan,  109. 
Blake  v.  Kimball,  197. 
Blamires    v.    Lancashire    &    York- 
shire R.  W.  Co.  635. 
Blanc  V.  Germania  Nat.  Bank,  263. 
Blanchard  v.  Dedham  Gas.  Co.  251. 
Blanchard  v.  Isaacs,  431,  437. 
Blanchard  v.  Page,  174,   545,  702, 

703,  704. 
Blanchard  v.  Stevens,  244. 
Bland  v.  Adams  Exp.  Co.  474. 
Bland  v.  Railway  Co.  652. 
Blinn  v.  Mayo,  190,  191,  202. 
Bliven  v.  Hudson  River  R.  Co.  196- 

492. 
Block  V.  Sherry,  368. 
Bloomer  v.  Henderson,  270. 
Blount  V.  Harney,  82. 
Blum  V.  Pullman  Car  Co.  647,  648. 
Blum  V.  The  Caddo,  703. 
Blythe  et  al.  v.  Denver,  etc.  R.  Co. 
471,  472. 


Boardman  v.  Holmes,  234,  237. 
Boardwood  v.  Granasa,  163. 
Boatmen's  Savings  Bank  v.  West, 

etc.  R.  Co.  562. 
Bobo  v.  Patton,  197. 
Bodwell  v.  Bragg,  372. 
Bogert  V.  Haight,  202. 
Bogges  V.  Railway  Co.  658. 
Boggs  &  Russell  v.  Martin,  558. 
Boling  V.  St.  Louis,  etc.  R.  Co.  644. 
Bolt  V.  Stennett,  543. 
Bonbright  v.  Bonbright,  279. 
Bonce  v.  Dubuque,  etc.  R.  Co.  418. 
Boorman  v.  Express  Co.  509. 
Borough's  Estate,  312. 
Boscowitz  V.  Adams  Ex.  Co.  457. 
Boston  Music  Hall  Ass'n  v.  Cory, 

251. 
Boston,  etc.  R.  Co.  v.  Shanly,  444. 
Bostwick  V.  Railway  Co.  515. 
Bottum  v.  Charleston,  etc.  R.  Co. 
482. 

Bourland  v.  Chocland,  etc.  R.  Co. 
494. 

Bowlin  V.  Lyon,  343. 

Bowman  v.  Teall,  469. 

Bowman  v.  Western  Fur  Co.  34. 

Bowman  v.  Wood,  318. 

Boyce  v.  Anderson,  593. 

Boyce  v.  Fitzpatrick,  625. 

Boylan  v.  Railway  Co.  639. 

Bradburn  v.  Whatcom  County  Ry. 
&  Lt.  Co.  670. 

Bradley  v.  Cunningham,  180. 

Bradley  v.  Parks,  286. 

Bradshaw  v.  Railway  Co.  643. 

Bradshaw  v.  South  Boston  R.  Co. 
640. 

Brady  v.  McMorris,  243. 

Braithwaite  v.  Powers,  546. 

Brand  v.  Weir,  571. 

Brass  v.  Braitland,  444. 

Brass  v.  Stoesner,  170. 

Brass  v.  Worth,  303. 

Braun  v.  Railway  Co.  650. 

Brennan  v.  Fairhaven,  659. 

Brennan  v.  Railway  Co.,  653. 

Bretherton  v.  Wood,  697. 

Bretz  V.  Diehl,  24. 


TABLE   OF    CASES. 


XXXV 


[References  are  to  sections.] 


Brewer  v.  N.  Y.  etc.  Co.  597,  598. 

Brewster  v.  Hartley,  24G. 

Brick  V.  Brick,  252. 

Bricker  v.  Philadelphia,  etc.  R.  Co. 
601,  602. 

Bridge  v.  Jackson,  etc.  Co.  657. 

Bridgeman  v.  Steamboat  Emily, 
456. 

Brien  v.  Bennett,  596. 

Briggs  V.  Walker,  278. 

Brind  v.  Dale,  439. 

Britnall  v.  Saratoga  &  Whitehall 
R.  Co.  530. 

Britton  v.  Atlanta,  etc.  R.  Co.  638. 

Broadwell  v.  Howard,  174. 

Broke  v.  Pickwick,  520. 

Brooklyn  Bank  v.  De  Grauw,  294. 

Brookman  v.  Hamill,  196. 

Brooks  V.  Railway  Co.  463. 

Brooks  V.  The  Southern  Pacific  R. 
Co.  628. 

Brower  v.  The  Water  Witch,  452. 

Brown  v.  Adams,   520,   720. 

Brown  v.  Adams  Exp.  Co.  509. 

Brown  v.  Atlanta,  etc.  R.  Co.  431. 

Brown  v.  Bowen,  463. 

Brown  v.  Chicago,  etc.  R.  Co.  638. 

Brown  v.  Clegg,  415. 

Brown  V.  Cunard  S.  S.  Co.  512. 

Brown  v.  Express  Co.  513. 

Brown  v.  Foster,  157. 

Brown  v.  Gilchrist,  625. 

Brown  v.  Grand,  677. 

Brown  v.Hadley,  494. 

Brown  v.  Patterson,  34. 

Brown  v.  Railroad  Co.  517. 

Brown  v.  Rapid  Ry.  640. 

Brown  v.Wier,  565. 

Brown  Hotel  Co.  v.  Burckhardt, 
359. 

Brown  Shoe  Co.  v.  Hunt,  381. 

Brownell  v.  Chapman,  494. 

Browning  v.  Goodchild,  390. 

Bruce  v.  Smith,  249. 

Bruley  v.  Ross  et  al.,  73. 

Brunswick,  etc.  R.  Co.  v.  D.  Roth- 
child  &  Co.  563. 

Brush  V.  Railway  Co.  670. 

Bryan  v.  Baldwin,  305. 

Bryan  v.  Pac.  Ry.  Co.  617. 


Bryan  v.  Railway  Co.  666,  670. 

Bryans  v.  Nix,  174. 

Bryant  v.  S.  W.  Ry.  Co.  489. 

Bryson  v.  Reynor,  326. 

Bucher  v.  Com.  167. 

Buck  et  al.  v.  Ingersoll,  299. 

Buck  V.  Railway  Co.  635. 

Buckingham  v.  Fisher,  202. 

Buckland   v.   Adams   Express   Co. 

421,  522. 
Buckley  v.  Garrett,  234. 
Buckley  v.  Great   Western    R.    Co. 

581. 
Buckley  v.  Naumkeag  Co.  462. 
Buckley  v.  Railway  Co.  189. 
Buckman  v.  Levi,  439. 
Buffett  V.  Troy,  etc.  R.  Co.  644. 
BufRngton  v.  Curtis,  255. 
Bullard  v.  Billings,  286. 
Bullock  V.  Adair,  339. 
Bumbear  v.   United   Traction   Co. 

637. 
Bunnell  v.  Sterne,  34. 
Burbank  v.  Chapin,  359. 
Burdick  v.  Murray,  64. 
Burgess  v.  Clements,  367. 
Burhfield  v.  Wheeler,  71. 
Burley  v.  Hamilton,  52. 
Burlington,  etc.  Co.  v.  Arms,  581. 
Burnell  v.  Railway  Co.  204. 
Burnham  v.  Young,  352. 
Burns  v.  Boston  Elev.  R.  Co.  637. 
Burnstein  v.  Sweeney,  339. 
Burr  V.  Adams  Exp.  Co.  563,  568. 
Burroughs  v.  Norwich  &  W.  R.  Co. 

530. 
Bursley  v.  Hamilton,  20. 
Burton  v.  Curyea,  174,  259,  262. 
Burton  v.  Wilkerson,  62. 
Bush  V.  Export  Storage  Co.  175. 
Bush  V.  Lyon,  277a. 
Buskirk  v.  Purington,  555. 
Buskirk  v.  Roberts,  664. 
Bussey      v.      Mississippi      Valley 

Transp.  Co.  415. 
Bussman  v.  Western  Transit  Co. 

644. 
Butler  V.  Hudson  River  R.  Co.  437. 
Butler  V.  Railway  Co.  680. 
Butts  V.  Collins,  136. 


XXXVl 


TABLE  OF   CASES. 


[References  are  to  sections.] 


c. 


Caldwell  v.  Hall,  9. 

Caldwell  v.  New  Jersey  Steamboat 
Co.  630. 

Calhoun  v.  Thompson,  62,  63. 

California  Powder  Works  v.  At- 
lantic &  P.  R.  Co.  514. 

Calye's  Case,  349,  359. 

Camp  V.  Steamboat  Co.  509. 

Campbell  V.  White,  219. 

Can.  Pac.  R.  Co.  v.  Johnston,  Mon- 
treal Rep.  602. 

Canfield  v.  Minn.  etc.  Ass'n  Co. 
303. 

Cannon  River  Mfg.  Co.  v.  First 
Nat.  Bank,  98. 

Cantwell  v.  Pacific  Ex.  Co.  493. 

Capehart  v.  Granite  Zvlfg.  Co.  432. 

Capper  v.  Railway  Co.  625. 

Carey  v.  Railway  Co.  722. 

Carlisle,  etc.  Bank  v.  Graham,  37, 
39,  40. 

Carnley  v.  Cohen,  177. 

Carpenter  v.  B.  &  O.  R.  Co.  406. 

Carpenter  v.  Branch,  93. 

Carpenterv.  Longan,  270. 

Carpenter  V.  Railway  Co.  691 

Carpenter  v.  Taylor,  332. 

Carpue  v.  London,  etc.  R.  Co.  727. 

Carroll  v.  Mullanphy  Sav.  Bank, 
249. 

Carroll  v.  Railway  Co.  666. 

Carter  v.  Hobbs,  339,  367,  373. 

Case  V.  Waterhouse,  159. 

Casey  V.  Caveroc,  238,  239,  312. 

Casey  v.  Schneider,  241. 

Casey  v.  Suter,  37. 

Cash  V.  Wabash  R.  Co.  487. 

Cashill  V.  Wright,  359. 

Cass  V.  Boston,  etc.  R.  Co.  214. 

Cass  V.  Higenbotom,  294. 

Caswell  V.  Boston,  etc.  R.  Co.  596. 

Cathcart  v.  Snow,  173. 

Cavallo  V.  Texas  Pacific  R.  Co. 
536. 

Caye  v.  Fabel,  Assignee,  etc.  558. 

C.  D.  Kenny  Co.  v.  Atlanta,  etc.  R. 
Co.  189. 


C.  H.  Larkin  Co.  v.  Dawson,  275. 
Cecil    Nat.    Bank    v.    Watsontown 

Bank,  249. 
Central  Elevator  v.  People,  170. 
Central  Ga.  R.  Co.  v.  Augusta,  etc. 

Co.  550. 
Cent.  etc.  R.  Co.  v.  Bayer,  536. 
Central  R.  Co.  v.  Combs,  644. 
Cent.    R.    &    Banking    Co.    v.    Ga. 

Fruit    &    Vegetable    Exchange, 

531. 
Central    Ga.   R.   Co.   v.    Hall,   471, 

509. 
Cent.  Ry.  Co.  v.  Hasselkus,  516. 
Central    R.    Co.   v.   Lippman,   468, 

666. 
Central  R.  Co.  v.  Mackey,  659. 
Central,  etc.  Co.  v.  Moore,  141. 
Cent.  R.  Co.  v.  Smyser,  433. 
Cent.  Trust  Co.  v.  Clark,  730. 
C.  B.  &  S.  v.  Iowa,  551. 
Chamber   of   Commerce    v.    Good- 
man, 219. 
Chamberlain  v.  Cobb,  93,  119. 
Chamberlain  v.  West,  47,  57,  13G, 

366. 
Chapin  v.  Chicago,  etc.  R.  Co.  462, 

464. 
Chapman  v.  Allan,  161. 
Chapman  v.  Brooks  et  al.,  286. 
Chapman  v.  First  Natl.  Bank,  163. 
Charlotte,  etc.  Co.  v.  Seaboard,  etc. 

R.  Co.  202,  214. 
Chase  v.  Corcoran,  70,  109. 
Chase  v.  Washburn,  24. 
Chase  v.  Westmore,  161. 
Chattahoochee  N.  Bank  v.  Schley, 

78. 
Chattanooga  Electric  Ry.  v.  Bod- 

dy,  606. 
Chattanooga,  etc.  R.   Co.   v.   Hug- 
gins,  603. 
Chattanooga,  etc.  Co.  v.  Venable, 

600. 
Cheever  v.  Myer,  251. 
Chemical  Nat.  Bank  v.  Armstrong, 

275. 
Chesapeake    R.    Co.    v.    American 

Exchange  Bank,  489. 


TABLE   OF   CASES. 


XXXVll 


[References  are  to  sections.] 


Chesapeake,  etc.  R.  Co.  v.  Beasley, 
694. 

Chesapeake  &  Ohio  v.  Clowes,  637. 

Chesapeake  &  Ohio  Ry.  Co.  v.  Ken- 
tucky, 551. 

Chesapeake,  etc.  R.  Co.  v.  King, 
605. 

Chesapeake,  etc.  Co.  v.  Wells,  613. 

C.  C.  C.  &  St.  L.  R.  Co.  V.  Illinois, 
551. 

Chicago,  etc.  Co.  v.  Albrecht,  657. 

Chicago  Fifth  Nat.  Bank  v.  Bay- 
ley,  256. 

Chicago,  etc.  Co.  v.  Bills,  648. 

Chicago,  etc.  Co.  v.  Casazza,  653. 

Chicago  &  N.  W.  R.  Co.  v.  Chap- 
man, 510. 

Chicago,  etc.  R.  Co.  v.  Frazer,  602. 

Chicago  B.  &  Q.  R.  Co.  v.  Griffin, 
640. 

Chicago,  R.  I.  &  P.  R.  Co.  v.  Har- 
man,  512. 

Chicago,  etc.  R.  Co.  v.  Herring, 
646. 

Chicago,  etc.  Co.  v.  Jenkins,  581. 

Chicago,  etc.  R.  Co.  v.  Kneirim, 
624. 

Chicago,  etc.  R.  Co.  v.  Mill,  etc.  Co. 
496. 

Chicago,  etc.  R.  Co.  v.  Miller,  717. 

Chicago  &  N.  W.  R.  Co.  v.  Mon- 
fort,  530. 

Chicago,  etc.  R.  Co.  v.  Mulford, 
644. 

Chicago  Ry.  Co.  v.  Munford,  661. 

Chicago  &  A.  R.  Co.  v.  People, 
550. 

Chicago,  etc.  R.  Co.  v.  Pillsbury, 
638. 

Chicago,  etc.  Co.  v.  Postin,  730. 

Chicago,  etc.  R.  Co.  v.  Ross,  627. 

Chicago,  etc.  R.  Co.  v.  Sawyer, 
469. 

Chicago,  etc.  R.  Co.  v.  Shea,  482. 

Chicago  &  Grand  Trunk  R.  Co.  v. 
Stewart,  596. 

Chicago,  etc.  R.  Co.  v.  Sullivan, 
626. 


Chicago  R.  R.  Co.  v.  Thrapp,  446.         City  Bank  v.  Railroad  Co.  255. 


Chicago,  etc.  R.  Co.  v.  Troyer,  599. 
Chicago,     etc.     R.    Co.     v.     Union 

Packet  Co.  558. 
Chicago,   etc.   R.    Co.   v.   Wallace, 

426. 
Chicago,   etc.  R.  Co.  v.  Williams, 

613. 
Chicago,   etc.    R.    Co.   v.   Winters, 

599,  605. 
Chicago,  etc.  R.  Co.  v.  Woodward, 

528. 
Chicago  Title,  etc.  Co.  v.  Brugger, 

243. 
Chickering  v.  Fowler,  573. 
Chidister  v.  Consolidated  Ditch  Co. 

471. 
Chilton   V.   St.  Louis,   etc.   R.   Co. 

612. 
Chittwood    V.    Langon    Zinc    Co. 

237a. 
Chollette  v.  Omaha,  etc.  R.  Co.  644. 
Chouteaux  v.  Leech  Co.  502. 
Christenson  v.  American  Exp.  Co. 

421. 
Christensen    v.    Metropolitan,    etc. 

Co.  657. 
Christie  v.  Griggs,  614,  631. 
Christie   v.   Missouri   Pac.   R.   Co. 

550. 
Christie  v.  Smith,  390. 
Churchill  v.  Railway  Co.  643. 
Churchill  v.  White,  14. 
Cicotte  V.  Gagnier,  270. 
Cincinnati,  etc.  R.  Co.  v.  Cooper, 

654,  659. 
Cincinnati,  etc.  R.  Co.  v.  McCool, 

187,  202,  581. 
Cincinnati,  etc.  R.  Co.  v.  Skillman, 

652. 
Citizens'  Bank  v.  Nantucket,  411, 

543. 
Citizens'  Bank  v.  Peacock,  262. 
Citizens'   Bank   v.   Steamboat   Co. 

410,  705. 
Citizens'  etc.  R.  Co.  v.  Hoffbauer, 

663. 
Citizens'    Street   Ry.   Co.   v.   Twi- 

name,  420. 


XXXVlll 


TABLE  OF  CASES. 


[References  are  to  sections.] 


City  Fire  Ins.  Co.  v.  Olmstead,  238. 

Civil  Rights  Cases,  613. 

Claflin  V.  Myer,  169,  204. 

Clancy  v.  Barker,  368. 

Clandaniel  v.  Tuckerman,  538. 

Clapp  V.  Nelson,  79. 

Clark  V.  Btirns,  333,  692. 

Clark  V.  Dtirham,  etc.  Co.  605,  634. 

Clark  V.  Geer,  670. 

Clark  V.  Henry,  281. 

Clark  V.  Lowell,  etc.  R.  Co.  383. 

Clark  V.  McDonnell,  593. 

Clark  v.  Needles,  186,  494. 

Clark  V.  Railroad  Co.  487. 

€lark  v.  Whitaker,  46. 

Clayton  v.  Steiger,  37. 

Cleghorn  v.  N.  Y.  etc.  R.  Co.  714. 

Cleveland,  etc.  R.  Co.  v.  Best,  602. 

603. 
Cleveland,  C.  &  I.  Ry.  Co.  v.  Clos- 

ser,  550. 
Cleveland,  etc.   R.   Co.   v.   Curran, 

599,  666. 
Cleveland,   etc.   R.   Co.   v.   Druien, 

511. 
Cleveland,  etc.  R.  Co.  v.   Illinois, 

628. 
Cleveland,  etc.  R.  Co.  v.  Ketcham, 

598. 
Cleveland,   etc.   R.   Co.  v.  Newell, 

727. 
Cleveland,  etc.  Co.  v.  Newlin,  517. 
Cleveland,  etc.  R.  Co.  v.  C.  &  A. 

Potts,  etc.  458. 
Clifford   v.   Universal   "Warehouse, 

etc.  Co.  202. 
Clugas  v.  Penaluna,  229. 
Clute  v.  Wiggins,  360,  362,  b63. 
Coal,  etc.  Co.  v.  Chicago,  etc.  Co. 

553. 
Cobb,  Blasdel  &  Co.  v.  I.  C.  R.  Co. 

456. 
Cobb  V.  111.  Cent.  R.  Co.  495. 
Cobb  V.  Railway  Co.  715,  719. 
Cobb  V.  Wallace,  77,  79,  211. 
Cobban  v.  Downe,  192. 
Coddington  v.  Bay,  244. 
Coffee  V.  Railway  Co.  682. 
Coger  V.  Packet  Co.  612. 


Coggs  V.   Bernard,  2,  33,   85,  124, 

217,  294,  407,   477,  560,  697. 
Cohen  v.  Frost,  693. 
Cohen  v.  Manuel,  360. 
Cohen  v.  Moshkowitz,  139,  141. 
Cole  V.  Goodwin,  520,  525. 
Collett  V.  London  &  N.  W.  R.  Co. 

597. 
Collins  V.  Belfonte  Cent.  R.  23. 
Collins  V.  Bennett,  46. 
Collins  V.  Bristol  &  Exeter  R.  Co. 

530. 
Collins  V.  Burns,  208. 
Collins  V.  Railway  Co.  684,  685. 
Colt  V.  Ives,  251. 
Columbus,   etc.   R.  Co.   v.   Powell, 

640. 
Colville  V.  Loud,  309. 
Colyar  v.  Taylor,  98,  405. 
Com.  v.  Pierce,  123. 
Com.  V.  Vermont,  etc.  R.  Co.  597. 
Commonwealth  v.  Hide  &  Leather 

Co.  541. 
Commonwealth  v.  Powers,  613. 
Commercial    Bank   v.    Homberger, 

242,  279. 
Commercial  Bank  v.  Pfeiffer,  256. 
Coombs  V.  Warren,  242. 
Comstock  V.  Hier,  244. 
Condon  v.  M.  H.  etc.  R.  Co.  534. 
Condran   v.    Chicago,    etc.    R.    Co. 

604,  646. 
Cone  V.  Delaware,  etc.  R.  Co.  625. 
Conger  v.  Chicago  &  N.  W.  R.  Co. 

480,  483. 
Conger,  etc.  v.  St.  Paul,  etc.  R.  Co. 

638. 
Congor  v.  Railway  Co.  702. 
Connolly  v.  Street  Car  Co.  654. 
Conner  v.  Chase,  252. 
Connor  v.  Citizens'  Ry.  Co.  661. 
Conroy  v.  Boston,  etc.  Co.  605. 
Converse  v.  Transp.  Co.  450. 
Conway  et  al.  v.  Caswell  et  al.,  279. 
Conway  v.  Mitchell,  730. 
Cook  V.  Gourdin,  610. 
Cook  V.Kane,  379,  380,  381. 
Cooke  V.  Kansas  City,  etc.  R.  Co, 

489. 


TABLE   OF    CASES. 


XXX IX 


[References  are  to  sections.] 


Cooley  V.  Board  of  Wardens,  613. 

Cooper  V.  Railway  Co.  642. 

Cooper    V.    Raleigh,    etc.    Railway 

Co.  487. 
Cooper  V.  Simpson,  307. 
Copeland  v.  Draper,  123. 
Copeley  Iron  Co.  v.  Pope,  157. 
Corn  Ex.  Bank  v.  Am.  Dock  &  T. 

Co.  174. 
Cornell  v.  Hichens,   270, 
Cornell  v.  Huber,  343. 
Cornell  v.  Mahoney,  211. 
Coscary  v.  Nagle,  361,  362. 
Costello  V.  Laths,  465. 
Cotant  V.  Boon,  etc.  Ry.  Co.  635. 
Coup  V.  Wabash,  St.  L.  &  P.  R.  Co. 

426. 
Coupland  v.  Housatonic  R.  Co.  489. 
Covington  Stockyards  Co.  v.  Keith, 

489. 
Cowles  V.  Pointer,  202. 
Cownie    Glove   Co.    v.   Merchants' 

etc.  Co.  406. 
Cox  V.  O'Reilly,  190. 
Cox  V.  Railroad  Co.  510,  517. 
Coykendall  v.  Eaton,  338,  366. 
Cragin  v.  N.  Y.  Cent.  R.  Co.  452, 

487. 
Craker  v.  Chicago,  etc.  R.  Co.  634. 
Crane  v.  Gough,  241. 
Crapo  V.  Rockwell,  334,  350. 
Crary  v.  Lehigh  Valley  R.  Co.  639. 
Crawford    v.    Southern    R.    Ass'n, 

530. 
Crawford  v.  Railway  Co.  642. 
Cream  City  R.  Co.  v.  Chicago,  etc. 

R.  Co.  519. 
Creamer  v.  West  End  Street  Car 

Co.  606. 
Creos  V.  Yowell,  242. 
Crocker  v.  Gullifer,  129. 
Croft  v.  Bunster,  270. 
Cromwell  v.  Stevens,  329,  333. 
Cronkite  v.  Wells,  445,  450. 
Crosbey  v.  Fitch,  469,  498,  499. 
Cross  V.  Andrews,  349. 
Cross  V.  Brown,  197. 
Cross  v.  Eiureka  Lake,  etc.  Canal 

Co.  280. 


Cross  v.  Lake  Shore  R.  Co.  635. 
Cross  v.  Wilkins,  161,  387. 
Crossan  v.  New  York,  etc.  Ry.  Co. 

556. 
Crouch  v.  London  &  Northwestern 

R.  Co.  444. 
Crouse  v.  Railway  Co.  730. 
Crump  v.  Mitchell,  79. 
Crutcher  v.  Schoctaw,  etc.  R.  Co. 

496. 
Crystal  Palace  v.  Vanderpool,  692. 
Cullen  v.  Lord,  108,  139. 
Cully  V.  B.  &  0.  Ry.  Co.  613. 
Cummings  v.  Gunn,  70,  197. 
Cummings  v.  Harris,  161. 
Cunningham's  Appeal,  301. 
Cunningham  v.  Buckey,  356,  358. 
Currie  v.  Roulstone,  590. 
Curties  v.  Louisville,  etc.  R.  Co. 

640. 
Curtis  V.  Leavitt,  286. 
Curtis  V.  Murphy,  335,  342. 
Curtis  V.  Railway  Co.  685. 
Cushman  v.  Thayer  Mfg.  Co.  249. 
Cussen    v.     Southern    Cal.     Savs. 

Bank,  196. 
Cutler  V.  Bonney,  349,  352,  356. 
Cutler  V.  Smith,  712 
Cutter  V.  Hamlen,  123. 
Cutting  V.  Morlen,  50. 
Cutting  V.  Railway  Co.  16,  720. 


D. 


Dale  V.  BrinkerhofE,  109. 

Dale  V.  Hall,  697. 

Dale  V.  See,  60,  142,  152,  156. 

Dalman  v.  Konning,  713. 

Dane  et  al.  v.  Old  Colony,  etc.  R. 
Co.  558. 

Danforth  v.  Grant,  390. 

Danforth  v.  Semple,  233. 

Dangerfield  v.  Atchison,  etc.  R.  Co, 
639. 

Dansey  v.  Richardson,  364. 

Da  Pointe  v.  New  Orleans  Trans- 
fer Co.  423. 

Darling  v.  Railroad  Co.  530. 

Darringer  v.  Railroad  Co.  627. 


xl 


T.VBLE  OF  CASES. 


[References  are  to  sections.] 


Dasch   V.   North   Chicago,   etc.   R. 

Co.  662. 
Davis  V.  Bradley,  174. 
Davis  V.   Chesapeake,  etc.  R.   Co. 

597. 
Davis  y.  Chicago,  etc.  Ry.  Co.  666. 
Davis  V.  Garrett,  476,  499. 
Davis  V.  Gay,  34. 

Davis  V.  New  York,  etc.  R.  Co.  722. 
Davis  V.  People,  233. 
Davis  v.  Railway  Co.  683. 
Davis  V.  Wabash,  etc.  R.  Co.  471. 
Davidson  v.  Fankuchen,  64,  75. 
Davidson  v.  Graham,  520. 
Dawley  v.  Palace  Car  Co.  688,  689. 
Daws  V.  Peck,  699,  701,  704. 
Dawson  v.  Channey,  349. 
Dawson  v.  Sloan,  369. 
Day  V.  Bassett,  129. 
Day  V.  Coddington,  244. 
Day  V.  Owen,  612,  613. 
Day  V.  Woodworth,  712, 
Dayton  Nat.  Bank  v.  Merchants' 

Nat.  Bank,  293. 
Dean  v.  Driggs,  174,  176. 
Dean  t.  King,  464. 
Dearborn  v.  Taylor,  271. 
De  Cordova  v.  Barnum,  297. 
Deitrich  v.  Railway  Co.  643. 
Delano  v.  Bennett,  271. 
Del.,  L.   &  W.   R.   Co.   v.   Central 

Stock  Yard  T.  Co.  167,  168. 
Del  Valle  v.  Richmond,  692. 
Deming  et  al.  v.  Merchants'  Cotton 

Press,  etc.  Co.  439,  513,  514. 
DeMott    &    Ingersoll    v.    Laraway, 

199. 
Denny  v.  N.  Y.  Central  R.  R.  Co. 

427. 
Denton  v.  Jackson,  322. 
Denver,  etc.  R.  Co.  v.  Frame,  702, 

718. 
Denver,  etc.  R.  Co.  v.  Munger,  202, 

214. 
Denver  v.  Sherrett,  730. 
Despard  v.  Walbridge,  252. 
Deslondes  v.  Wilson,  70. 
Detroit,  etc.   R.   Co.  v.  McKensie, 

530,  556. 


Detroit,  etc.  R.  Co.  v.  Van  Stein- 
burg,  41,  660,  661. 
Devereux  v.  Buckley,  720. 
Devoin  v.  Lumber  Co.  46. 
Dewart  v.  Masser,  282. 
Dewey  v.  Railway  Co.  625. 
Dibble  V.  Morgan,  471,  575. 
Dickerman  v.  Union  Depot  Co.  641. 
Dickey    v.     Pocomoke    City    Nat. 

Bank,  241. 
Dickinson  v.  Port  Huron,  etc.  Co. 

657. 
Dickinson  v.  Winchester,  362,  366. 
Dickson  v.  McCoy,  123. 
Dieterle  v.  Bekin,  202. 
Dietrich    v.    Pennsylvania    R.    Co. 

640. 
Dillard  v.  Louisville  &  N.  R.  Co. 

513. 
Dimmey  v.  Wheeling  R.  Co.  663. 
Dimmick  v.  St.  Paul  R.  Co.  202. 
Dixon  V.  Railroad  Co.  430,  431,  536. 
Dixon  V.  Richmond  &  D.  R.  Co.  457. 
Dixon  V.  The  Surrey,  577. 
Doak  V.  Bank,  325. 
Dodge  V.  Boston,  etc.  R.  Co.  605. 
Dodge  V.  S.  S.  Co.  671. 
Dodgson  V.  Henderson,  233. 
Dole  V.  Olmstead,  178. 
Domestic  Sewing  Machine  Co.   v. 

Watters,  380,  381,  383. 
Donald  v.  Suckling,  288. 
Donnell  v.  The  Starlight,  160. 
Donohoe  v.  Gamble,  313. 
Dorr   V.   N.    J.    Steam   Navigation 

Co.  520. 
Douglass  V.  People's  Bank,  562. 
Douglas  V.  Reynolds,  235. 
Dowe  V.  Winnipesaukee,  730. 
Downey  v.  Railway  Co.  714. 
Downing  v.  Outerbridge,  713. 
Downs  v.  Fromont,  525. 
Dow  v.  Green,  259. 
Dows  V.  Bank,  562. 
Dows  V.  National  Exchange  Bank, 

253. 
Dows  V.  Perrin,  264. 
Doyle    V.    Fitchburg,    etc.    R.    Co. 

660,  667,  670. 


TABLE   OF    CASES. 


Xll 


[References  are  to  sections.] 


Drake  v.  White,  58-274. 
Drew  V.  Cent.  Pac.  Ry.  Co.  643. 
Drummond,  etc.  Co.  v.  Mills,  64. 
Du  Bose  V.  Louisville,  etc.  R.  Co. 

640. 
Ducker  v.  Barnett,  171. 
Duff  V.  Budd,  563. 
Duff  V.  Railroad  Co.  597,  606. 
Dunbe  &  Knapp  v.  Chicago,  etc.  R. 

Co.  494. 
Dunber  v.  Day,  352. 
Duncan  v.  Benson,  542. 
Duncomb  v.  N.  Y.  etc.  R.  Co.  16, 

243,  286,  317. 
Dundas  v.  Lansing,  660. 
Dunham  v.  Lee,  63,  79 
Dunlap  V.  Gleason,  79,  211. 
Dunlap  V.  Limes,  244. 
Dunlap  V.  Moore,  390. 
Dunlop  V.  Monroe,  389. 
Dunn  V.  Railway  Co.  671. 
Dunn  V.  Train,  237a. 
Dupay  V.  Gibson,  310. 
Dupre  V.  Fall,  277a. 
Durant  v.  Einstine,  310,  326. 
Durfee  v.  Newkirk,  713. 
Durgin  v.  Am.  Express  Co.  516. 
Duvenick  v.  Mo.  Pac.  R.  Co.  513. 
Dwight  V.  Brewster,  406,  421. 
Dwinnelle   v.   N.   Y.   Cent.   R.   Co. 

638. 
Dyer  v.  Grand  Trunk  R.  Co.  553. 
Dyer  v.  Railway  Co.  702. 
Dwight  V.  Brewster,  421. 
Dykers  v.  Allen,  303. 


E. 


Eagan  v.  A  Cargo  of  Spruce,  558. 
East  Tenn.   etc.   R.   Co.  v.   Kelly, 

58L 
East  Tenn.  etc.  R.  Co.  v.  Nelson, 

534. 
Eastman   v.   Maine   Cent.   Ry.   Co. 

639. 
Eastman  v.  Patterson,  34. 
Easton  v.  German  American  Bank, 

307. 


Eastern  R.  Co.  v.  Relief  Fire  Ins. 

Co.  177,  541. 
Eaton  et  al.  v.  Cook,  590. 
Eaton  V.  Del.  L.  &  W.  R.  Co.  602. 
Eaton  V.  Hill,  14. 

Eckles  V.  Missouri  Riv.  R.  Co.  528. 
Edgerton  v.  Railway  Co.  727. 
Edrington  v.  Harper,  252. 
Edward's  Appeal,  23. 
Edwards  v.  Lord,  631. 
Edwards  v.  Railway  Co.  639. 
Edwards  v.  White  Line,  etc.  Co. 

62,  492. 
Efron  V.  Pullman  Car  Co.  691. 
Ela  V.  Am.  etc.  Exp.  Co.  561. 
Elam  V.  St.  Louis,  etc.  R.  Co.  471. 
Elcox  V.  Hill,  359. 
Elder  v.  Rouse,  296,  313. 
Elkins  V.  Boston,  etc.  R.  Co.  57. 
Elkins  V.  Railway  Co.  705. 
Elliott  V.  Russell  &  Lewis,  705. 
Elliott  V.  Southern  Pac.  640. 
Ellsworth  V.  Railway  Co.  651. 
Elmer  v.  Lock,  625. 
Elmon  V.  Naugatuck  R.  Co.   530, 

536. 
Elmore  v.  Sands,  643. 
Emerson  v.  Peteler,  588. 
Emery  Sons  v.  R.  W.  &  0.  R.  Co. 

255. 
Empire  St.  Cattle  Co.  v.  Atchison, 

etc.  R.  Co.  498. 
Enos  V.  Cole,  109,  126. 
EJnsel  V.  Levy  &  Bro.  174. 
EpendorfE  v.  Street  Car  Co.  661. 
Epps  V.  Hinds,  366. 
Erie  Bank  v.  Smith,  42. 
Erie  &  Pac.  Desp.  v.  Cecil,  550. 
Erie  Dispatch  Co.  v.  Johnson,  561 
Erie  Ry.  Co.  v.  Wilcox,  530. 
Estes  V.  Railway  Co.  687. 
Estey  &  Green  v.  Graham,  287. 
Eulow  V.  Klein,  23. 
Evans  v.  Atlanta,  etc.  R.  Co.  536. 
Evans  v.  Chicago,  etc.  R.  Co.  557. 
Evans  v.  Fitchburg  R.  Co.  487. 
Evans  v.  Railway  Co.  644. 
Evansville  R.  Co.  v.  Irwin,  259. 


xlii 


TABLE  OF  CASES. 


[References  are  to  sections.] 


Evansville  &  T.  H.  R.  Co.  v.  Keith, 

432. 
Evansville,   etc.   R.   Co.   v.   Marsh, 

556. 
Evansvile  R.  Co.  v.  Young,  509. 
Everett  v.  Chicago,  etc.  Co.  640. 
Everett  v.  Saltus,  702. 
Exchange  Bank  v.  Butner,  243. 
Exeter  Bank  v.  Gordon,  318. 
Ex  parte  Newhall,  83. 
Express  Co.  v.  Black,  436. 
Express  Co.  v.  Caldwell,  517. 
Express  Co.  v.  Darnell,  570. 
Express  Co.  v.  Haynes,  515. 
Express  Co.  v.  Jackson,  469. 
Express  Co.  v.  McVeigh,  697. 
Express  Co.  v.  Moon,  515. 
Elxpress  Co.  v.  Spellman,  515. 
Exp.  Co.  v.  Stetaners,  515. 
Exton  V.  Central  R.  Co.  596,  611, 

638. 


F. 


Fagan  v.  Thompson,  44,  291. 

Fairbanks  &  Co.  v.  Cincinnati  R. 
Co.  519. 

Fairchild  v.  Hoiley,  231. 

Fairfax  v.  Central  R.  Co,  169. 

Fairfax  v.  Railway  Co.  204,  677. 

Fairmont  Coal  Co.  v.  Jones  &  Ad- 
ams, 34. 

Faison  v.  Railroad  Co.  536. 

Falkner  v.  Brown,  366. 

Falkner  V.  Hill,  286. 

Fall  River  Nat.  Bank  v.  Slade,  236. 

Falls  V.  Railway  Co.  635. 

Farham  v.  Camden,  etc.  R.  Co.  520. 

Farnham  v.  Railway  Co.  666. 

Farish  &  Co.  v.  Reigle,  621,  727. 

Farkas  v.  Powell,  125. 

Farley  v.  Lavery,  410. 

Farmers'  etc.  Bank  v.  Bennett, 
175. 

Farmers'  Bank  v.  Champlain 
Trans.  Co.  482,  520,  530. 

Farmers'  etc.  Bank  v.  Hasselton, 
259. 

Farmers'  Nat.  Bank  v.  Logan,  259. 


Farmers'  Loan,  etc.  Co.  v.  North- 
ern P.  R.  Co.  492. 

Farmers'  Loan  &  Trust  Co.  v.  To- 
ledo &  S.  H.  R.  Co.  305. 

Farmington  Co.  v.  Railroad  Co. 
536. 

Farnsworth  v.  Packwood,  367. 

Farrell  v.  Richmond  R.  Co.  171, 
588,  590,  591. 

Farrow  v.  Bragg,  82. 

Farsan  v.  Gilbert,  217,  237o. 

Faulkner  v.  Brown,  57. 

Farwell  v.  Boston  R.  Co.  624. 

Farwell  v.  Importers'  etc.  Bank, 
317. 

Farwell  v.  National  Bank,  313. 

Fay  v.  Pacific,  etc.  Co.  334,  337. 

Fay  v.  Parker,  713. 

Fay  v.  Steamer  New  World,  405, 
512. 

Feige  v.  Railway  Co.  189,  581. 

Feise  et  al.  v.  Wray,  588. 

Feital  v.  Railway  Co.  727. 

Felton  v.  Chicago,  etc.  R.  Co.  638. 

Fenkhausen  v.  Fellows,  588. 

Fenner  v.  Buff,  574. 

Fettyplace  v.  Dutch,  254,  277a. 

Fewings  v.  Mendenhall,  611. 

Fick  V.  Runnels,  109. 

Fidelity  Ins.  Trust  &  Safe  Co.  v. 
Roanoke  Iron  Co.  305. 

Fiefield  v.  Insurance  Co.  474. 

Fifth  National  Bank  v.  Providence 
Warehouse  Co.  178. 

Files  V.  Railway  Co.  661,  662. 

Fillebrown  v.  Grand  Trunk  R.  Co. 
520. 

Findley  v.  Hosmer  312, 

Finn  v.  Western  R.  Co.  366,  704. 

First  Nat.  Bank  v.  Bacon,  252. 

First  Nat.  Bank  v.  Broadway  Nat. 
Bank,  243. 

First  Nat.  Bank  of  Chicago  v. 
Dean,  174,  254. 

First  Nat.  Bank  of  Omaha  v. 
Goodman  et  al.  233. 

First  Nat.  Bank  v.  Graham,  214. 

First  Nat.  Bank  v.  Gunkus,  242. 

First  Nat.  Bank  v.  Harkness,  23Ta. 


TABLE   OF    CASES. 


xliii 


[References  are  to  sections.] 


First  Nat.  Bank  v.  Nelson,  23S. 

First  Nat.  Bank  v.  Rush,  305. 

First  Nat.  Bank  v.  Zent,  196. 

Fish  V.  Chapman,  410,  525. 

Fisher  v.  Boston,  etc.  R.  Co.  505. 

Fisher  v.  Essex  Bank,  251. 

Fisher  v.  Fisher,  244,  317. 

Fisher  v.  Geddes,  437. 

Fisher  v.  Kelsey,  337,  352,  367,  373. 

Fisher  v.  West  Va.  R.  Co.  659. 

Fisk  V.  Forsyth  Co.  41. 

Fisk  V.  Newton,  574,  575. 

Fitch  V.  easier,  339. 

Fitch  V.  Newberry,  383,  492. 

Fitch    &    Gilbert   v.    Newberry    & 

Goodell,  555. 
Fitchburg  Ry.  Co.  v.  Gage  et  al. 

543,  550. 
Fitchburg  R.  Co.  v.  Hanna,  186. 
Fitzgerald  v.  Grand  Trunk  R.  Co. 

549. 
Fitz  Maurice  v.  New  York,  etc.  R. 

Co.  646. 
Fletcher  v.  American  Express  Co. 

563. 
Fletcher  v.  Dickinson,   313. 
Flike  V.  Boston,  etc.  R.  Co.  623. 
Flynn  v.  Railroad  Co.  536. 
Flynn  v.  St.  Louis  Transit  Co.  005. 
Forbes  v.  Boston,  etc.  R.  Co.  561. 
Ford  V.  Cheever,  713. 
Foreman  v.  Beckwith,  242. 
Forrester  v.  Railroad  Co.  536. 
Forrester  v.   Huniata   Bridge  Co. 

70. 
Forsythe  v.  Walker,  480. 
Fort  V.  Railroad  Co.  625. 
Forward  v.  Pittard,  472. 
Foster  v.  Berg,  308. 
Foster  v.  Essex  Bank,  15,  50. 
Foster  v.  Metts,  391. 
Foster  v.  Pettebone,  61,  138. 
Fowler   v.    Liverpool,    etc.    Steam 

Co.  508. 
Fox  V.  Harding,  720. 
Fox  V.  Iron  Co.  625. 
Fox  V.  Mich.  Cent.  R.  Co.  634,  654. 

659. 

d 


France  v.  Clarke,  314. 
Francis  v.  Shrader,  93,  119. 
Frank  v.  Ingalls,  646. 
Frank  V.  Keith,  474. 
Frankfort  Bank  v.  Johnson,  206. 
Frankhouser  v.  Wagner,  34. 
Frazier  v.  Railroad  Co.  430. 
Frederick    v.    Marquette,    etc.    R. 

Co.  640. 
Freedon  v.  N.  Y.  Cent.  etc.  Co.  611. 
Freeman  v.  Atchison,    etc.    R.    Co. 

639. 
Freeman  v.  Bristol  Sav.  Bank,  221. 
Freeman  v.  Perry,  242. 
Freeman  v.  Rowland,  14. 
Freiburg  v.  Dreyfus,  262. 
Fremont,  etc.  R.   Co.   v.  Hagblad, 

635,  636. 
Fridley  v.  Bowen,  237. 
Friedlander  v.  Railway  Co.  462. 
Friedlander   v.    Texas   &   Pac.   R. 

Co.  439. 
Frink  &  Co.  v.  Coe,  621. 
Frost  V.  Shaw,  227. 
Ft.  Worth  &  D.  R.  Co.  v.  Martin, 

432. 
Ft.  Worth  &  D.  R.   Co.   v.  Riley, 

430. 
Fuller  V.  Bradley,  404,  558. 
Fuller  V.  Coats,  356,  358,  359,  3G2. 
Fulton  V.  Davidson  National  Bank, 

82. 
Furgeson  v.  Popp,  294. 
Furman  v.  Chicago,  etc.  R.  Co.  62. 
Furman  v.  Union  Pac.  R.  Co.  562. 
Furnes  v.  Union  Nat.  Bank,  44. 
Furst  Bros.  v.  Bank,  3. 


G. 


Gage  v.  Riverside  Trust  Co.  279. 
Gaines  v.  Transp.  Co.  515. 
Gaines  v.  Union  Trans.  Co.  509. 
Galena,  etc.  R.  Co.  v.  Fay,  633. 
Galena,    etc.    R.   Co.    v.    Rae,    432, 

454,  715. 
Galigher  v.  Jones,  324. 
Gallin  v.  Railway  Co.  667. 


xliv 


TABLE  OF  CASES. 


[References  are  to  sections.] 


Gait  V.  Archer,  559,  719. 
Galway  v.  Fullerton,  241. 
Game  v.  Harvie,  2. 
Gardner  v.  Heartt,  40. 
Gardner  v.  Hoeg,  226. 
Gardner  V.  People,  210. 
Gardner  V.  Railroad  Co.  Gfil. 
Garfield,  etc.  Co.  v.  Rockland,  etc. 

Co.  190. 
Gargan    v.    West   End   Street   Car 

Co.  GOG. 
Garlick  v.  James,  304,  318. 
Garner  v.  St.  Louis,  etc.  R.  Co.  430. 
Garton  v.  Bristol  &  E.  R.  Co.  550. 
Garton  v.  Union  City  Bank,  231. 
Gashweiler  v.  Wabash  R.  Co.  581. 
Gates  V.  Ryan,  545. 
Gastenhofer  v.  Clair,  340. 
Gee   V.    Lancashire   &  Y.   Ry.    Co. 

720. 
Geilfuss    V.    Corrigan    et    al.    173, 

237o,   238. 
Geismer  v.  L.   S.  &  M.   S.  R.   Co. 

496,  500. 
Genet  v.  Rowland,  325. 
Gensen    Co.    Nat.    Bank    v.    Nash- 
ville, etc.  R.  Co.  459. 
George  v.  Matorn,  238. 
George  v.  Pierce,  238. 
Georgia,  etc.  Co.  v.  Asmore,  652. 
Georgetown,  etc.  R.  Co.  v.   Smith, 

634. 
Georgia   Southern,   etc.    R.    Co.    v. 

Johnson,  509. 
Georgia,  etc.  R.  v.  Pearson,  644. 
Georgia,  etc.  R.  Co.  v.  Thompson, 

581. 
Gerish  v.  Savs.  Bank,  34. 
German,  etc.  Bank  v.  Hanna,  279. 
German     Union     Ass'n     Bldg.     v. 

Sendmeyer,  247. 
Germania  Savings  Bank  v.  Peuser, 

297. 
Gerold  v.  Guttle,  213. 
Gibbons  v.  Farwell,  561. 
Gibbons  v.  Ogden,  628. 
Gibbons  v.  Paynton,  525. 
Gibbons  v.  Robinson,  462. 


Gibson  v.  Culver,  574. 

Gibson  v.  Warden,  312. 

Giffen  v.  City,  730. 

Gilbert  v.  Aldrich,  349. 

Gilbert  V.  Dale,  536. 

Gilbert  V.  Hoffman,  344,  368. 

Gilbert  v.  Mfg.  Iron  Co.  250. 

Gile  V.  Libbey,  349,  35G. 

Giles  V.  Fountleroy,  373. 

Gillett  V.  Whiting,  322. 

Gilson  V.  Madden,  545. 

Girard  F.  &  M.   Ins.  Co.  v.  Muir, 

316. 
Gisbourn  v.  Hurst,  406. 
Gladson  v.  Minnesota,  551. 
Glass  V.  Goldsmith,  462. 
Gleason  v.  Beers,  34,  133. 
Gleason  v.  Railroad  Co.  598. 
Gleason  v.  Transp.  Co.  694. 
Gleason  v.  Va.  etc.  R.  Co.  598. 
Glen  V.  Lake  E.  &  W.  R.  Co.  605 
Glenn  v.  Winters,  123. 
Glidden  v.  Bank,  305. 
Globe  Works  v.  Wright.  160. 
Goddard   v.    Grand   Trunk   R.   Co. 

634. 
Golden   v.   Mechanics'   Nat.   Bank, 

313. 
Goldstein  v.  Hort,  221,  283. 
Goodbar  v.  Wabash  R.  Co.  186. 
Goodin  v.  Southern  Ry.  Co.  556. 
Goodman  v.  Conkling,  244. 
Goodnow  V.  Dunn,  225. 
Goodrich  v.. Thompson,   436,   505. 
Goodrich  V.  Willard   et  al.    161. 
Goodwin  v.  Massachusetts  Loan  & 

&  Trust  Co.  244. 
Goodwin  v.  Scanlon,  178. 
Goodwin  V.  Southern  Ry.  Co.  534. 
Gordon  v.  Buchanan,  410. 
Gordon  v.  Grand    St.    etc.    R.    Co. 

595. 
Gordon  v.  Hutchinson,  410. 
Gordon  v.  Manchester,  664. 
Gordon  v.  Silver,  375,  379,  380. 
Goss  V.  Emerson,  243,  286. 
Gott  V.  Dinsmore,  515,  520. 
Gould  V.  Hill,   518. 


TABLE    OF    CASES. 


xlv 


[References  are  to  sections.] 


Gould  V.  Railway  Co.  652. 
Grace  v.  Adams,  509,  516. 
Gracie  v.  Palmer,  553. 
Graffln  v.  Railway  Co.  685. 
Graham  v.  McNeal,  637. 
Graham  &  Ward  v.  Macon,  etc.  R. 

Co.  528. 
Graham  v.  Railway  Co.  661. 
Grahn  v.  International,  etc.  R.  Co. 

646. 
Graman  v.  Smith,  322. 
Grand  Island  Savs.  &  Loan  Ass'n 

V.  Moore,  297. 
G.  R.  &  I.  Ry.  Co.  V.  Ellison,  621. 
Grand    Rapids    &    Ind.    R.    Co.    v. 

Huntley,  468,  633. 
Grand  Trunk  Ry.  Co.  v.  Ives,  660. 
Grant  v.  Norway,  462. 
Grant  v.  Smith,  439. 
Grant  v.  "Wood,  545. 
Graven  v.  MacLeod,  605. 
Gray  v.  Jackson,  528,  530. 
Gray  V.  Merriam,  39,  93. 
Gray  v.  "Wabash,  etc.  R.  Co.  407. 
Great  "Western  Transp.  Co.  v.  Bagg, 

545. 
Great  "Western  R.  Co.  v.  Hawkins, 

488,  489. 
Great  "Western   R.    Co.   v.    Miller, 

658. 
Great  Western   R.   Co.   v.   Sutton, 

550. 
Green  v.  Clarke,  703. 
Green  v.  Harris,  79. 
Green  v.  Hoglingsworth,  34. 
Green  v.  Milwaukee  R.  Co.  439. 
Green  v.  Railroad  Co.  450,  718. 
Green  v.  Sinker,  Davis  &  Co.  224. 
Green  v.  Sperry,  14. 
Green    Bay    First    Nat.    Bank    v. 

Dearborn,  255. 
Green,  etc.  Nav.  Co.  v.  Marshall, 

575. 
Green   Wheeler   Shoe  Co.   v.   Chi- 
cago, etc.  R.  Co.  471. 
Greenfield  School  District  v.  First 

Nat.  Bank,  244. 
Greenwall  v.  Hayden,  317. 


Gregg  v.  Hamlin,  195. 

Gregg   V.    Illinois    Central    R.    Co. 

581. 
Gregg  V.  Railway  Co.  187. 
Gregory  v.  Railway  Co.  186. 
Gregory  v.  Stryker,  138,  158. 
Griffin  v.  Henry,  237a. 
Griffin  v.  Utica,  etc.  R.  Co.  644. 
Griffith  V.  Railway  Co.  638. 
Griffith  V.  Zipperwick,  34. 
Grindley  v.  Express  Co.  494. 
Grinnell  v.  Cook,  161,  163,  349,  366, 

379,  380. 
Griswold  v.  Haven,  176. 
Griswold  v.  Railway  Co.  667,  670. 
Grosvenor  v.   N.   Y.   Cent.    R.   Co. 

433,  436. 
Grosvenor  v.  Railroad  Co.  431. 
Grover  &  Baker  Co.  v.  Railway  Co. 

530. 
Grund  v.  Pendergast,  715. 
Grymes  v.  Hone,  249. 
Gulf,  Ry.  Co.  V.  Camel,  646. 
Gulf,   etc.  R.  Co.  V.   Looney,   644, 

645. 
Gulf,  etc.  Co.  V.  McGowan,  666. 
Gulf,  etc.  R.  Co.  V.  Trawick,  186, 

489. 
Gulf,  etc.  R.  Co.  V.  Wilson,  598. 
Gulf,  etc.  R.  Co.  V.  Wright,  513. 
Gulf,  etc.  Co.  V.  York,  489. 
Gunderman  v.  Railway  Co.  635. 
Gurley  v.   Reed,  252. 

H. 

Haasv.  Kansas  City  R.  Co.  259. 
Hadley  V.  Baxendale,  494,  719. 
Hadley  v.  Cross,  123,  631. 
Hagabush  v.  Rayland,  34. 
Hagan  v.  National  Bank,  306. 
Hagar  v.  Union  Nat.  Bank,  291. 
Hageman  v.  Western  R.  Corp.  633, 
Hagerstown  Bank  v.  Express  Co. 

540. 
Hale    et    al.    v.    Milwaukee    Dock 

Co.  174,  176,  178. 
Hale  V.N.  J.  S.  N.  Co.  472. 


xlvi 


TABLE  OF  CASES. 


[References  are  to  sections.] 


Hales  V.  London  &  N.  W.  R.  Co. 

493. 
Hall  V.  Cayot,  237o. 
Hall  V.  Cheney,  509. 
Hall  V.  Corcoran,  19. 
Hall  V.  De  Cuir,  612,  613. 
Hall  V.  Diamond,  553,  590. 
Hall  V.  McCain,  551. 
Hall  V.  Memphis  &  C.  R.  Co.  640. 
Hall  V.  Ocean  Ins.  Co.  542. 
Hall  V.  Pike,  337. 
Hall  V.  Railway  Co.  667. 
Hall  V.  Warner,  128. 
Halsted  v.  State,  210. 
Hamilton's  Ex'r  v.  Hamilton,  275. 
Hamilton  v.  Lubukee,  271. 
Hamilton  v.  McLaughlin,  72. 
Hamilton  v.  McNulty,  385. 
Hamilton  v.  State  Bank,  324. 
Hammond  v.  Danielson,  160. 
Hampton  v.  Pullman  Car  Co.  647. 
Hamsted,  etc.  Co.  v.  Chapman,  221. 
Hance  v.  Wabash,  etc.  R.  Co.  515. 
Hancock  V.  Franklin  Ins.  Co.  279, 

280,  303. 
Hancock  v.  Rand,  337. 
Hand  v.  Baynes,  574. 
Hanes  v.  Railway  Co.  680. 
Hanks  v.  Drake,  322. 
Hanna  v.  Holton,  275,  307,  313. 
Hanna  v.  Phelps,  64. 
Hannah  v.  People,  170. 
Hannibal  &  St.  .1.  R.  Co.  v.  Swift, 

457. 
Hass  &  Co.  V.  Citizens'  Bank,  459. 
Hasbrouck  v.  Vandervoort,  326. 
Haskins  v.  New  York  Cent.  R.  Co. 

626. 
Haskins  v.  Pattison,  273. 
Hasse  v.  Express  Co.  567,  570. 
Hardenberg  v.  St.  Paul,  etc.  R.  Co. 

637. 
Harding  v.  Eldridge,  217,  237a. 
Harrington  v.  King,  20,  47. 
Harrington  v.  Snyder,   123. 
Harrington  v.  Stranton,  300. 
Harris  V.  Bradley,  173. 
Harris  v.  Coe,  5. 


Harris  v.  Grand  Trunk  R.  Co.  530. 

Harris  v.  Packard,  543. 

Harris  et  al.  v.  Pratt,  590. 

Harris  V.  Rand,  469,  538. 

Hart  V.  Pa.  R.  Co.  510. 

Hart  V.  Railway  Co.  717. 

Hartan    v.    Eastern    Railway    Co. 

644. 
Hartley  v.  Tapley,  226. 
Hartwell  v.  Northern  Pac.  Ex.  Co. 

471. 
Harvey  v.  Railroad  Co.  494,  715. 
Hatch  V.  Philadelphia,  etc.  R.  Co. 

634. 
Hathaway  v.  Fall  River  Nat.  Bank, 

294. 
Hathaway  v.  Haynes,  240,  256. 
Hatton  v.  Railway  Co.  643. 
Hauselt  v.  Harrison,  273. 
Hawkins  v.  Great  Western  R.  Co. 

457,  519. 
Hawkins  v.  Railway  Co.   677. 
Hawks  V.  Locke,  123. 
Hawley  v.  Cramer,  305. 
Hawthorne   v.    Hammond,   343. 
Hay  V.  Pacific  Imp.  Co.  352. 
Hayes  v.  Campbell,  435,  509. 
Hays  v.  Pennsylvania  Co.  550. 
Hayes  v.  Wells,  Fargo  &  Co.  482. 
Haynie  v.  Baylor,  410. 
Hayward  v.  Middleton,  545. 
Hazard  v.  Wells,  316. 
Head  v.  Goodwin,  226. 
Heath  v.  Glen  Falls  Street  Car  Co. 

663. 
Heath  v.  Silverthorn,  290. 
Hedges  et  al.  v.  H.  R.  R.  Co.  579. 
Hees  V.  Curry,  244. 
Hegerstown  Bank  v.  Express  Co. 

540. 
Heil  V.  Railway  Co.  716. 
Heiskell  v.  Bank,  562. 
Heller  v.  Chicago,  etc.  R.  Co.  488. 
Helliwell  v.  Grand  Trunk  R.  Co. 

457. 
Hemmelmann  v.  Fitzpatrick,  298. 
Hempner  v.  Comer,  243. 
Henck  v.  Georgia,  etc.  R.  Co.  644. 


TABLE    OF    CASES. 


xlvii 


[References  are  to  sections.] 


Henderson  v.  Mahoney,  64. 
Henderson  v.  Mayor  of  New  York, 

613. 
Henderson  v.  Stephens,  515. 
Hendricks  v.  Railroad  Co.  596. 
Hendricks  v.  Robinson,  291. 
Hensel  v.  Noble,  67,  161. 
Herbert  v.  Markwell,  358. 
Herbert  v.  Railroad  Co.  625. 
Herford  v.  Davis,  23. 
Hern  v.  Nichols,  558. 
Herrick  v.  Gallagher,  572. 
Hersh   v.    Northern    Cent.    R.    Co. 

550. 
Hess  V.  Meriden,  etc.  Co.  637,  657. 
Hewitt  V.  Chicago,  B.  &  Q.  R.  Co. 

457. 
Hexamer  v.  Webb,  206. 
Heyward  v.  Railway  Co.  671. 
Hiatt  V.  Railway  Co.  635. 
Hibbard  V.  N.  Y.  &  Erie  R.  Co.  613. 
Hibbard  V.  Railway  Co.  642. 
Hibernian,  etc.  Ass'n  v.  McGrath, 

34. 
Hickey  v.  Morrell,  202. 
Hickman  v.  Thomas,  386. 
Hickok  V.  Buck,  540. 
Hickox  V.  Buckingham,  462. 
Hicks  V.  Union,  etc.  Co.  635. 
Hieskell  v.  Farmers'  Bank,  253. 
Higman  v.  Comody,  142. 
Hildebrand  v.  Carroll,  139. 
Hill  V.  Boston,   etc.  R.   Co.   509. 
Hill  V.  Denver,  557. 
Hill  V.Owen,  357. 
Hill  V.  Railroad  Co.  523,  643. 
Hill  V.  Smith,  291. 
Hilton  V.  Adams,  360. 
Hilton  V.  Sims,  234. 
Hilts  V.  Chicago,  etc.  R.  Co.  626. 
Hinsdell  v.  Weed,  537. 
Hoadly  v.  Northern  Trans.  Co.  509. 
Hoagland  v.  Forest  Park,  etc.  Co. 

70. 
Hobbs  V.  Railway  Co.  729. 
Hodgden  v.  New  York  &  N.  H.  R. 

Co.  504. 
Hodges  v.  Tennessee  Ins.  Co.  252. 


Hoeger  v.  Railway  Co.  C80. 
Hofer  V.  Hodge,  128. 
Hoffbauer  v.  Railway  Co.  652. 
Hoffman  v.  Carow,  221. 
Hoffman  v.  Railway  Co.  654. 
Hoffman,  etc.  Co.  v.  St.  Louis,  etc. 

R.  Co.  407. 
Holbrookv.  N.  J.  Zinc  Co.  249. 
Holbrook  V.  Wight,   60. 
Holden  v.  Soulby,  364. 
Holderman  v.  Manier,  72. 
Holeman  v.  Hobson,  317. 
Hollenbeck  v.  Todd,  20. 
Hollingsworth  v.  Dow,  160. 
Hollister  v.  Nowlen,  472,  482,  509, 

520. 
Holmes  v.  Bailey,  255. 
Holmes  v.  German   Security   Bank, 

255. 
Holt,  etc.  Co.  V.  Arthur  Jordan  Co. 

204. 
Holt  V.  Wescott,  545. 
Home  Ins.  Co.  v.  Baltimore  Ware- 
house Co.  177. 
Homer  v.  Savings  Bank,  287. 
Homestead,   etc.   Co.  v.  Chapman, 

243. 
Hood    Co.    v.    American,    etc.    Co. 

509,  512. 
Hood  v.  Hammond,   279. 
Hood  v.  N.  Y.  &  N.  H.  R.  Co.  530. 
Hook  V.  Ayers,  238. 
Hoover  et  al.  v.  Pennsylvania  Ry. 

Co.  550. 
Hopkins  v.  Wescott,  677. 
Hoppin  V.  Buffum,  250. 
Horace   Waters   &  Co.   v.   Gerard, 

381. 
Home  V.  Meakin,  123. 
Horner  v.  Savings  Bank,  310. 
Horton  v.  Terminal  Hotel  Co.  359, 

374. 
Hosmer  v.  Railway  Co.  667. 
Hough  V.  People's  F.  Ins.  Co.  177. 
Houghton  V.  Houghton,  300. 
House  V.  Alexander,  558. 
Houser  v.  Telia,  362,  363. 
Houser  V.  Tully,   356,   360. 


xJviii 


TABLE  OF  CASES, 


[References  are  to  sections.] 


Houston,  etc.  R.   Co.  v.  Hampton, 

598. 
Houston  R.  Co.  v.  Hodde,  431. 
Houston,  etc.  R.  Co.  v.  Ney,  718. 
Houston,  etc.  Co.  v.  Norris,  633. 
Houston,  etc.  Co.  v.  Smith,  715. 
Howard  v.  Farr,  136. 
Howard  v.  Harris,  252. 
Howard,  Adm'x  v.  Illinois  Cent.  R. 

Co.  628. 
Howard  v.  Manufacturing  Co.   494. 
Howard  v.  Old  Dominion  Co.  561. 
Howe  Machine  Co.  v.  Pease,  352, 

357. 
Howe  V.  Russell,  252. 
Howe  V.  Stewart,  589. 
Howland  v.  Milwaukee  R.  Co.  600. 
Howorth  V.  Seevers  Mfg.  Co.  626. 
Howth  V.  Franklin,  330. 
Hozier  v.  Caledonian  R.  Co.  550. 
Hubbard  v.  Mobile,  etc.  R.  Co.  528, 

687. 
Hubbersty  v.  Ward,  439. 
Hudson  V.  Columbian  Transfer  Co. 

180. 
Hufford  V.  G.  R.  &  I.  Ry.  Co.  640. 
Hufford  V.  Railway  Co.  651. 
Hugh  V.  Schlosser  et  al.  345. 
Hughes  V.  Edwards,  252. 
Huiton  V.  Dibbons,  39. 
Hulbert  v.  Hartman,  352,  355. 
Huldeman     v.     German     Security 

Bank,  232. 
Hulett  V.  Smith,  360. 
Hulett  V.  Swift,  349,  352. 
Hull  V.  Chicago  R.  Co.  471. 
Hunn  V.  Railroad  Co.  627. 
Hunphreys  v.  Perry,  679. 
Hunsaker  v.  Sturgis,  291. 
Hunt  V.  Bode,  237«. 
Hunt  V.  Rousmanier's  Adm'r,  82. 
Huntv.  Wyman,  23,  58. 
Hunter  v.  Ricks  Bros.  34,  204. 
Hunter  v.  Southern  Pacific  R.  Co. 

530. 
Hurd  V.  Railway  Co.  612. 
Hursh  V.  Buyers,  387. 
Hurst  V.  St.  Louis,  etc.  R.  Co.  512. 


Hurwitz  V.  Hamburg,  etc.  Packet 

Co.  674,  677. 
Huston,  etc.  R.  Co.  v.  Foster,  493. 
Hutchins  v.  Pa.  R.  Co.  687. 
Hutchinson  v.  C,  St.  P.,  M.  &  O. 

R.  Co.  483. 
Hutchinson  v.  York,  600. 
Huyler  v.  Dahoney,  313. 
Hyde  V.  Cookson,  138. 


lanone  v.  N.  Y.  etc.  R.  Co.  600. 
Indianapolis,  etc.  Co.  v.  Cox,  522. 
Indianapolis,  etc.  R.  Co.  v.  Hern- 
don,  561. 
Indianapolis,  etc.  R.  Co.  v.  Renard, 

609. 
Indianapolis  Traction  Co.  v.  Law- 
son,  670. 
Ind.  &  I.  C.  Ry.  Co.  v.  McKennan. 

304,   319. 
Ind.  Cent.  Ry.  Co.  v.  Mundy,  6G0, 

670. 
Ingalls  V.  Bills,  123,  631,  633. 
Ingelsby  v.  Wood,  349. 
Inglebright  v.  Hammond,  61. 
Illinois  Cent.  R.  Co.  v.  Adams,  489. 
Illinois  Cent.  R.  Co.  v.  Ashmead, 

186. 
Illinois  Cent.  R.  Co.  v.  Bauer,  650. 
Illinois  Cent.  R.  Co.  v.  Beebe,  599, 

668. 
Illinois  Cent.  R.  Co.  v.  Carter,  528. 
Illinois  Cent.  R.  Co.  v.  Cobb,  444, 

446,  494. 
Illinois  Cent.  R.  Co.  v.  Copeland. 

530. 
Illinois    Cent.    R.    Co.    v.    Crudup, 

666. 
Illinois  Cent.  R.  Co.    v.  Frankens 

berg,  520,  530. 
Illinois   Cent.    Ry.   Co.    v.    Handy, 

647,  690. 
Illinois  Cent.  R.  Co.  v.  Harris,  489. 
Illinois  Cent.  R.  Co.  v.  Hobbs,  635. 
Illinois  Cent.   R.   Co.   v.   Hornber- 

ger,  186. 


TABLE    OP    CASES 


xlix 


[References  are  to  sections.] 


Illinois    Cent.    R.    Co.    v.    Illinois, 

551. 
Illinois  Cent.  R.  Co.  v.  Jewell,  626. 
Illinois  Cent.  R.  Co.  v.  McClellan, 

186. 
Illinois  Cent.  R.  Co  v.  Meacham, 

602. 
Illinois  Cent.  R.  Co.  v.  Minor,  638. 
Illinois  Cent.  R.  Co.  v.  Morrison, 

509,  510,  518. 
Illinois   Cent.    R.    Co.    v.    O'Keefe, 

601,  602. 
Illinois  Cent.  R.  Co.  v.  Read,  668. 
Illinois  Cent.  R.  Co.  v.  Schwartz, 

444. 
Illinois   Cent.    R.    Co.   v.    Smyser, 

452. 
Illinois  Cent.  Ry.  Co.  v.  Southern 

Bank,  etc.  256. 
Illinois  Cent.  R.  C.  v.  Treat,  596. 
Illinois  Cent.  R.  Co.  v.  Whittemore, 

613. 
Ingersoll  v.  Van  Bokkelin,  540. 
Inman   v.   Railroad   Co.    446,    541, 

666. 
Insurance  Co.  v.  Chase,  177. 
Insurance  Co.  v.  Easton,  471. 
Insurance  Co.  v.  Railroad  Co.  528, 

541. 
International,    etc.    Co.   v.   Nichol- 
son, 720. 
International,   etc.  Co.  v.  Tisdale 

531. 
Interstate  Commerce  Com.  v.  Bal- 
timore &  0.  R.  Co.  550. 
In   re   California   Navigation,   etc. 

Co.  670. 
In  re  McElheney,  458. 
In  re  Oaklet  et  al.  279. 
In  re  Riley,  312. 
In  re  Rogers,  175. 
Irons  V.  Kentner,  24,  172. 
Iron  Mountain  Ry.  Co.  v.  Knight, 

439. 
Isbell  V.  Railway  Co.  659. 
Iseman  v.  South  Carolina,  etc.  Co. 

593. 
Ives  V.  Hartley,  172. 


Jackson  v.  Adams,  150. 
Jackson  v.  Bank,  317. 
Jackson  v.  Blodgett,  271. 
Jackson  v.  Bronson,  271. 
Jackson  v.  Cummings,  161. 
Jackson  v.  McDonald,  34. 
Jackson  v.  McDonald,  204. 
Jackson  v.  Norfolk,  etc.  R.  Co.  627. 
Jackson  v.  Railway  Co.  653. 
Jackson  Agr.  Iron  Works  v.  Hurl- 

burt,  419. 
Jacobs  V.  Haynes,  356. 
Jacobs  V.  Latour,  161. 
Jacobs  V.  West  End  R.  Co.  637. 
Jacobus  V.  Railway  Co.  60C,  670. 
Jacobus  V.  St.  Paul  R.  Co.  509. 
Jaggers  v.  Railway  Co.  661. 
Jalie  V.  Cardinal  et  al.  356,  362. 
James  v.  Emmet  Co.  722. 
James   S.  Davis,  etc.  Co.  v.  Mer- 
chants' Dispatch,  etc.  Co.  528. 
James  v.  Plank,  24,  172. 
Jamison  v.  Gray,  456. 
Jarvis  v.  Rogers,  221,  234,  286,  289. 
Jasper  Trust  Co.   v.   Kansas  City 

R.  Co.  259. 
Jaques  v.  Marquand,  244. 
Jeanes'  Appeal,  304. 
Jefferson    Hotel    Co.    v.    Warren, 

350. 
.Teffersonville  R.  Co.  v.  Irvin,  255. 
Jeffris  V.  Pittsburg,  etc.  R.  Co.  558. 
Jellett  V.  St.  Paul,  etc.  R.  Co.  47, 

366. 
Jemison  v.  Camden  &  Amboy  R. 

Co.  530. 
Jencks  v.  Coleman,  610,  613. 
Jenkins  v.  Eldridge,  252. 
Jenkins  v.  National  Bank,  292. 
Jenness  v.  Bean,  243,  313. 
Jennings  v.  Grand  Trunk  R.  Co. 

509. 
Jennings  v.  Wyzanski,  306, 
Jennison  v.  Parker,  302. 
Jerome  v.  McCarter,  302,  303,  312. 
Jewel  v.  Railway  Co.  662. 


TABLE  OF  CASES. 


[References  are  to  sections.] 


Jewett  V.  Warren,  230. 

Joliet  Iron  Co.  v.   Scioto,  etc.  Co. 

275,  313,  315. 
Jones  V.  Boston,  etc.  R.  Co.  602. 
Jones  V.  Earle,  589. 
Jones  V.  Foreman,  142. 
Jones  V.  Hicks,  316. 
Jones  V.  Morgan,  179,  196. 
Jones  V.  Page,  123. 
Jones  V.  Railway  Co.  666,  730. 
Jones  V.  Richardson,  226,  259. 
Jones  V.  Scott,  299. 
Jones  V.  Vorheis,  520. 
Johnson  v.  Allen,  3. 
Johnson  v.  Detroit,  etc.  R.  Co.  634. 
Johnson  v.  Eveleth,  590. 
Johnson  v.  Hill,  163. 
Johnson  v.  Miller,  63,  125. 
Johnson  v.  N.  Y.  Cent.  R.  Co.  499, 

534. 
Johnson  v.  Pensacola,  etc.  R.  Co. 

550. 
Johnson  v.  Philadelphia  W.  &  B. 

R.  Co.  640. 
Johnson  v.  Whitemore,  79. 
Johnston  v.  Brown,  172. 
Johnston  v.  Davis,  557. 
Johnston  v.  Friar,  410. 
Johnston  v.  Laflin,  249. 
Johnston  v.  Pensacola  R.  Co.  543. 
Johnston  v.  Richardson,  352. 
Johnston  v.  Smith,  286. 
Johnston  v.  Underhill,  249. 
Jordan  v.  Railway  Co.  677. 
Joslin  V.  Grand  Rapids,  etc.  R.  Co. 

714. 
Joslyn  V.  King,  97. 
J.  P.  Donaldson,  414. 
Judson  V.  Western  R.  Co.  512,  520. 
Just  V.  State  Savings  Bank,  243. 

K. 

Kaiser  v.  Latimer,  200. 
Kaiser  v.  Topping,  238. 
Kalen  v.  Railway  Co.  730. 
Kamena  v.  Huelbig,  241. 
Kansas  City  R.  Co.  v.  Poster,  644. 


Kansas  City  v.  Simpson,  515. 
Kansas,   etc.   R.    Co.    v.    Simpson, 

510. 
Kansas    City,    etc.    R.    R.    Co.    v. 

Washington,  687. 
Kapp  &  Co.  V.  McCaffrey,  72. 
Karrigan  v.  Southern  Pac.  R.  Co. 

644. 
Kaufman  v.  Leonard,  213. 
Keating  v.  Mich.  Cent.  R.  Co.  602. 
Keater  v.  Scranton  Tr.  Co.  608. 
Keenan  v.  Southworth,  389. 
Keith  V.  Bliss,  150. 
Kellerman  v.  Kansas,  etc.  R.  Co. 

513. 
Kelley  v.  Patchell,  62. 
Kellow  v.  Cent.  Iowa  Ry.  Co.  621. 
Kelly  v.Kahn,  93. 
Kelly  v.  Manhattan,  etc.  Co.  635. 
Kelly  V.  N.  Y.  &  S.  B.  Ry.  Co.  629. 
Kemp  v.  Coughtry,  411. 
Kemp  V.  Westbrook,  326. 
Kendall  v.  Boston,  727. 
Kendall  v.  Co.  v.  Mason,  312. 
Kennedy  v.  N.  Y.  C.  &  H.  R.  R.  Co. 

519. 
Kennedy  v.  Putnam,  214. 
Kent  v.  Shackford,  349. 
Kentucky  Bank  v.  Adams  Exp.  Co. 

421. 
Kentucky,  etc.  Co.  v.  Bank,  459. 
Kentucky  Wagon  Mfg.  Co.  v.  Rail- 
road Co.  et  al.  561. 
Kesten  v.  Hildebrand,  349. 
Kiff  v.  Old  Colony  R.  Co.  62,  492. 
Kimball  v.  Cushman,  206. 
Kimball    v.    Rutland,    etc.    R.    Co. 

509,  520. 
Kinchiloe  v.  Priest,  33. 
King  V.  Bates,  79. 
King  V.  Exchange  Bank,  93. 
King  V.  N.  Y.  etc.  R.  Co.  206. 
King  V.  Shepherd,  462,  471. 
King  V.  Texas  B.  &  Ins.  Co.  306. 
Kingman  v.  Dennison,  590. 
Kinney  v.  Kempton,  293. 
Kinney  v.  Kruse,  243. 
Kinney  v.  Railway  Co.  670. 


TABLE    OF    CASES. 


[References  are  to  sections.] 


Kirby  v.  Delaware,  etc.  Co.  635. 
Kirk  V.  Chicago,  etc.  Co.  581. 
Kirk  V.  Railway  Co.  189. 
Kirkman  v.  Bowman,  462. 
Kirkman  v.  Shawcross,  161. 
Kirney  v.  Railway  Co.  667. 
Kissman  v.  Jones,  123. 
Kisten  v.  Hildebrandt,  359. 
Kittler  v.  Studabaker,  243. 
Kittsridge  v.  Freeman,  72. 
Kleiber  v.  People's  R.  Co.  633. 
Kop  Bros.  Co.  v.  Smith,  244. 
Kopper  V.  Willis,  333. 
Kortright  v.  Cady,  294,  298,  560. 
Kortright    v.    Commercial    Bank, 

247,  248. 
Knapp  V.  Curtis,  202. 
Knight  V.  Bell,  79. 
Knight  V.  Davis  Carriage  Co.  20. 
Knight  V.  Davis  Car  Co.  57. 
Knight  V.  Piella,  204. 
Knott  V.  Railroad  Co.  530. 
Knowles  v.  Atlantic  &  St.  L.   R. 

Co.  205. 
Knowlton  v.  Erie,  etc.  Co.  597. 
Krueger  v.  Railroad  Co.  625. 
Kroeger  v.  Seattle,  etc.  Co.  657. 
Krulder  v.  Ellison  et  al.  702. 
Kuehn  v.  Wilson,  150. 
Kumler  v.  Junction  R.  Co.  600. 
Kunkle  v.  Wolfersberger,  252. 


L. 


Labowitz  v.  Frankfort,  139,  141. 
Labowitz  v.  Soloman,  139. 
Lacey  v.  Thompson,  329. 
Ladd  V.  Railroad  Co.  600. 
Lafaye  v.  Harris,  455. 
Lafitte  V.  Railway  Co.  653. 
Laing  v.  Burley,  250. 
Laing  v.  Colder,  520. 
Laird  v.  Eichold,  352. 
Lakeman  v.  Grinnell,  452. 
Lake  Erie,  etc.  Co.  v.  Hatch,  581. 
Lake    Shore,    etc.    Co.    v.    Banks, 
662. 


Lake  Shore,  etc.  R.  Co.  v.  Brown, 

599. 
Lake   Shore,  etc.   R.   Co.  v.   Ohio, 

628. 
Lake    Shore,    etc.    R.    Co.    v.    Oru- 

dortf,  650. 
Lake  Shore,  etc.  R.  Co.  v.  Teeters, 

599. 
Lake    Shore    &    Mich.    S.    Ry.    v. 

Mortal,  639. 
Lake  Shore  v.  Perkins,  488. 
Lamb  v.  Camden  &  Amboy  R.  Co. 

204. 
Lamb  v.  Parkman,  399. 
Lancaster     Co.     Mut.     Bank     v. 

Smith,  59. 
Lancaster     Mills     v.     Merchants' 

Cotton  Press  Co.  177,  202. 
Lane  v.  Cameron,  46,  180. 
Lane  v.  Cotton,  389. 
Lane  v.  Railway  Co.  187, 
Lanier  v.  Youngblood,  360. 
Lassen  &  Whitaker  v.  Clark,  360. 
Latta  V.  Tutton,  294. 
Laughlin  et  al.  v.  Chicago  &  N.  W. 

R.  Co.  536. 
Laurent  v.  Vaughan,  456. 
Lawrence  v.  Aberdein,  487. 
Lawrence  v.  Buck,  70. 
Lawrence  v.  Clark,  244. 
Lawrence  v.  Green,  727. 
Lawrence  v.  Maxwell,  290. 
Lawrence  v.  N.  Y.  B.  &  P.  Co.  512. 
Lawrence  L.  Poina,  etc.  Co.  v.  St. 

Louis,  etc.  Co.  202. 
Lawson   v.    Genesee    Farmei",   etc. 

176. 
Lawson  v.  Railway  Co.  599. 
Lay  v.  Lawson,  79. 
liOach   V.    French,    123. 
League  v.  Rogan,  353. 
Leahy    v.   Lobdell,    Farrell    &   Co. 

305. 
Le  Barron  v.  Ferry  Co.  671. 
Ledyard  v.  Hibbard,  24. 
Lee  V.  Baldwin,  316. 
Legg  v.  Willard,  299. 
Lehr  v.  S.  &  H.  R.  Ry.  Co.  637. 


lii 


TABLE  OF  CASES. 


[References   are  to   sections.] 


Leidy  v.  Quaker  City  Cold  Stor- 
age &  Warehouse  Co.  202. 

Leigh  V.  Smith,  430,  432,  439. 

Leitch  V.  Wells,  249. 

Leiley  v.  Doubleday,  180. 

Lemon  v.  Chanslor,  418. 

Lemprier  v.  Pasley,  555. 

Leo  V.  Railroad  Co.  536. 

Leoncini  v.  Post,  136. 

Le  Peintur  v.  Southeastern  Ry. 
Co.  720. 

Lesassier  v.  S.  W.  Co.  590. 

Levering  v.  Transp.  Co.  515. 

Levi  V.  Corey,  347. 

Levi  V.  Lynn  &  Boston  R.  Co.  420. 

Levien  v.  Webb,  647. 

Levinski  v.  Banking  Co.  730. 

Lexington  v.  Kidd,  56. 

Lesinski  v.  G.  W.  D.  Co.  534. 

Lewis  v.  First  Nat.  Bank,  175. 

Lewis  v.  Great  Western  R.  Co. 
516. 

Lewis  V.  Hitchcock,  332. 

Lewis  V.  Houston,  etc.  Co.  605. 

Lewis  v.  Jewett,  297. 

Lewis  v.  Mott,  286. 

Lewis  V.  New  York  Sleeping-Car 
Co.  333,  647. 

Lewis  V.  Sleeping-Car  Co.  691. 

Lewis  V.  Tyler,  161. 

Lewis  V.  VanHorn,  436. 

Libby  v.  Ingalls,  561. 

Libby  v.  Railroad  Co.  598. 

Lichtenheim  v.  Boston  P.  R.  Co. 
208. 

Lichtenstein   v.    Jarvis,    214. 

Lickbarrow  v.  Mason,  255,  264, 
590. 

Lidderdale  v.  Montrose,  228. 

Lillibridge  v.  McCann,  661. 

Lime  Rock  Bank  v.  Plumpton, 
244. 

Lincoln  v.  Gay,  133. 

Lincoln  v.  Guay,   150. 

Line  v.  Mills,  180. 

Litner's  Appeal,   250. 

Little  V.  Boston,  etc.  Co.  520. 

Little  v.  Fossett,  57,  540. 

Little  Rock  v.  Atkins,  661. 


Little   Rock,  etc.  Co.   v.   Cravens; 

513,  514. 

Little  Rock,  etc.  R.  Co.  v.  Oppen- 
heimer,  etc.  Co.  550. 

Little  Rock,  etc.  R.  Co.  v.  Talbot, 
519. 

Littlefield  v.  Biddeford,  57. 

Liverpool,  etc.  Steam  Co.  v.  Insur- 
ance Co.  666. 

Liverpool  &  L.  6  G.  Ins.  Co.  v. 
McNeil,  510. 

Liverpool  Steamboat  Co.  v.  Phoe- 
nix Co.  412,  414. 

Lock  Co.  v.  Railroad  Co.  536. 

Lockwood  v.  Ball,  124. 

lioeb  v.  Peters,  587,  588,  590. 

London,  etc.  Co.  v.  Rome,  etc.  R. 
Co.  430. 

Long  v.  Printing  Co.  713. 

Long  Island  etc.  Co.  v.  Fitzpat 
rick,  72. 

Long  V.  Pennsylvania  R.  Co.  469. 

Loomis  v.  Stave,  308. 

Loud  v.  Burke,  304. 

Louisville,  etc.  R.  Co.  v.  Conrad,. 
644. 

Louisville  &  N.  R.  Co.  v.  Echols, 
430. 

Louisville,  etc.  Co.  v.  Faylor,  666. 

Louisville  R.  Co.  v.  Flanigan,  431, 
445,  456. 

I<ouisville  R.  Co.  v.  Garrett,  652. 

Louisville,  etc.  R.  Co.  v.  Gerson, 
411. 

Louisville  &  N.  R.  Co.  v.  Gilbert, 

514,  519. 

Louisville,  etc.  R.  Co.  v.  Hailey, 
602. 

Louisville,  etc.  Co.  v.  Jones,  727. 

Louisville,  etc.  R.  Co.  v.  Johnson, 
659. 

Louisville,  etc.  Co.  v.  Keifer,  666. 

Louisville  &  N.  R.  Co.  v.  Ken- 
tucky, 551. 

Louisville,  etc.  Co.  v.  Logan,  654. 

Louisville  R.  Co.  v.  Mississippi, 
551,  613. 

Louisville  &  N.  R.  R.  Co.  v.  Moss, 
602. 


TABLE   OF   CASES. 


liii 


[References   are   to   sections.] 


Louisville,   etc.   Ry.   v.   Patterson, 

637. 
Louisville,   etc.   R.   Co.   v.   Taylor, 

670. 
Louisville,  etc.   R.   Co.   v.   Thomp- 
son, 646. 
Louisville,  etc.  R.  Co.  v.  U.  S.  186. 
Louisville,   etc.   R.   Co.    v.   United 

States,  202,   214,  430. 
Louisville  &  N.  R.  Co.  v.  Weaver, 

600. 
Louisville,  etc.  R.  Co.  v.  "Wilson, 

543,  .550. 
Louisville,  etc.  Co.  v.  Wright,  639. 
Lovejoy  v.  Jones,  63,  125. 
Loveland  v.  Burke,  481. 
Lord  v.  Hartford,  305. 
Low   V.    Pew,    226. 
Lowrie's   Executrix    v    Salz,    173. 
Loyd    V.    Lynchburg    Nat.    Bank, 

231. 
Lucas  V.  Milwaukee  R.  Co.  602. 
Lucas  V.  Pa.  Co.  635. 
Lucketts  V.  Townsand,  2S. 
Lucy  V.  Chicago,  etc.  R.  Co.  638. 
Luhrs  V.  Brooklyn  Heights  R.  Co. 

638. 
Luke  V.  Wheat  Mining  Co.  660. 
L.  &  N.  R.  Co.  V.  Eubank,  551. 
L.  &  N.  R.  Co.  V.  Kentucky,  551. 
Lusby  V.  Railway  Co.  071. 
Luck  V.  Belote,  337. 
Lycett  V.  Railway  Co.  647. 
Lyman  v.   State  Bank,  243. 
Lynar  v,  Mossope,  339 
Lynch  v.  Kluber,  203. 
Lynch  v.  Railway  Co.   654. 
Lynch  v.  Richardson,  123. 
Lynn  v.  Southern  P.  R.  Co.  637. 
Lyon  &  Co.  v.  Hill  &  Co.  571. 
Lyon  v.  Lennon,  23,  172. 
Lyon  V.  Woodward.  722. 

M. 

McAlister  v.   Chicago,  etc.  R.   Co. 

62. 
McAlister  v.  Railway  Co.  492. 
McAllister  v.  Simon,  205. 


McArthur  v.  Howett,  290. 
McCafferty  v.  Brady,  208. 
McCalla  v.  Clark,  282. 
McCarthy  v.  Chicago,  etc.  R.  Co. 

640. 
McCarthy  v.  Gould,  228. 
McCarthney  v.  Carbine,  82. 
McCaw  V.  Kimbrel,  128. 
McCaw  V.  Union  Traction  Co.  637. 
McCawley  v.  Davidson,  33. 
McCawley  v.  Railway  Co.  667. 
McConihe  v.  Railway  Co.  141. 
McConnell  v.  Norfolk  &  W.  R.  Co. 

530. 
McConnele  v.  Hughes,  23. 
McCoy  v.  Hock,  161. 
McCoy  V.  K.  &  D.  R.  Co.  487,  509. 
McClure  v.  Railway  Co.  643. 
McClure   v.    Roman.    235. 
McCurdy    v.    New    York,    etc.    Co. 

581. 
McCurdy  v.  Wollblom,  46,  180. 
McCutcheon  v.  People,  210. 
McDaniels  v.  Flour  Mfg.  Co.  290. 
McDaniels  v.  Railroad  Co.  600. 
McDaniels    v.    Robinson,    33,    338, 

352,   358. 
McDonald  v.  Central  R.  Co.  651. 
McDonald  v.  St.    Louis,     etc.     Co. 

605. 
McDonald  v.  Western  R.  Co.  536, 

581. 
McDowell  V.  Chicago  Steel  Co.  303, 

304. 
McDowell  V.  Railway  Co.  188. 
McDuffie  V.  Portland  &  R.  Co.  550. 
McDuffie  V.  Railroad  Co.  549. 
McEntee  v.  New  Jersey  Steamboat 

Co.  561. 
McFall  v.  Buckeye,  etc.  238. 
McFarland  v.  Wheeler,  72. 
McGee  v.  Bast,  33. 
McGee  v.  Pacific  Imp.  Co.  337. 
McGhee  v.  Edwards,  161. 
McGill  V.  Rowand,  674. 
McGoffin  V.  Mo.  Pac.  R.  Co.  598. 
McGraw  v.   Baltimore   &   Ohio  R. 

Co.  471,  495,  496. 
McGraw  v.  Patterson,  20,  136. 


liv 


TABLE  OF  CASES. 


[References  are  to  sections.] 


McGrew  v.  Thayer,  24. 

McHenry    v.    Philadelphia   R.    Co. 

353,   469. 
McHugh  V.  Schlosser,  347. 
Mclntyre  v.  Carver,  64. 
Mclver  v.  Railway  Co.  653. 
McKay  v.  Ohio  R.  Co.  640,  643. 
McKee  v.  Hecksher,  538. 
McKee  v.  Owen,  333,  610,  692. 
McKeown,  Ex'r.  v.  Harvey,  82. 
McKibben  v.  Bakers,  142. 
McKibbin  v.  Wisconsin,  etc.  R.  Co. 

685. 
McKinney  v.  Neil,  621. 
McLaughlin  v.  New  York  Lighter- 
age Co.  204. 
McLean  v.  Burbank,  727. 
McLendon  v.  Wabash,  etc.  R.  Co. 

528. 
M'Manus    v.    Lancashire    Ry.    Co. 

488. 
McMaster  v.  Merrick,  72,  385. 
McMillan  v.  Michigan  S.  &  N.  L  R. 

Co.   189,   509,   520,  522,   530,   581. 

584. 
McNamara,  v.  Great  Northern,  etc. 

R.  Co.  602. 
McNeill  V.  Durham,  etc.  R.  Co.  670. 
McNeil  V.  Tenth  Nat.  Bank,  249. 
McNulty  V.  Pa.  R.  Co.  600. 
McQueen's  Appeal,  275. 
McQuilten  v.  Railway  Co.  660,  661. 
McVeety  v.  Railway  Co.  646. 
McVeety  v.  St.  Paul,  etc.  R.  Co.  602. 
McWethy   v.    Detroit,    etc.    R.    Co. 

644. 
McWilliams  v.  Lake  Shore,  etc.  R. 

Co.  638. 
McTyre  v.  Steel,  462. 
Mack  V.  Snell,  23,  138,  142,  151, 157. 
Mack  V.  Story,  3. 
Macklin  v.  Fraser,  169. 
Macomber  v.  Parker,  225. 
Macrow  v.  Railway  Co.  675. 
Madden  v.  Chesapeake  &  O.  R.  Co. 

627. 
Maghee  v.  Camden  &  Amboy  R.  Co. 

499,   505,   524. 
Magnin  v.  Dinsmore,  482. 
Maguire  v.  Middlesex  R.  Co.  659. 


Mahoney  v.  Caperton,  234,  317. 

Mahoney  v.  Hale,  239. 

Mahony  v.  Detroit  St.  R.  Co.  640. 

Mairs  v.  Taylor,  221,  283. 

Mallory  v.  Willis,  138. 

Mange  v.  Heringhi,  309. 

Mann  Boudoir  Co.  v.  Dupre,  648. 

Mann  v.  White  River,  etc.  Co.  426. 

Manning  v,  Hollenbeck,   375,   379, 

380,  381,  386. 
Mann  v.  Logging  Co.  427. 
Manning  v.  Wells,  352,  364. 
Mansen  v.  Jacobs,  532. 
Mansur  etc.  Co.  v.  Carey,  242,  291. 
Mansur-Tebbetts  Implement  Co.  v. 

Carey  et  al.  276. 
Manufacturing  &  Traders'  Bank  v. 

Hazard,  463. 
Manufacturing  Co.  v.  Falvey,  317. 
Manufacturing  Co.  v.  Miller,  337. 
Manufacturing  Co.  v.  Pinch,  494. 
Maples  v.  Railway  Co.  642. 
Marine  Bank  v.  Wright,  256. 
Marks  v.  New  Orleans,  etc.  Co.  204. 
Markham  v.  Brown,  343,  348,  368, 

610. 
Marriam  v.   Hartford,  etc.  R.  Co. 

432. 
Marriam  v.  Hartford  &  N.  H.  R. 

Co.  439. 
Marsh  v.  Railway  Co.  720. 
Marshall   et   al.    v.   Am.   Exp.   Co. 

567. 
Marshall  v.  Express  Co.  570. 
Marshall    v.    Pontiac,    etc.    R.    Co. 

685. 
Martin  v.  Cuthbertson,  180. 
Martin  v.  McReynolds,  271. 
Marvel  v.  Phillips  et  al  Ex'rs.  S2 
Maslin  v.  B.  &  O.  Co.  599. 
Maslin  v.  Railroad  Co.  513. 
Mason  v.  Smith,  157. 
Mason  v.  St.  Louis,  etc.  Co.  39. 
Mason  v.  Thompson,  338,  349,  352 

362,  366. 
Mason  v.  Waite,   244. 
Masonic  Temple,  etc.  Co.  v.  Lang 

felt,  202. 
Masterson  v.  Street  Car  Co.  661. 
Mateer  v.   Brown,   352. 


T.VBLE    OF    CASES. 


Iv 


[References  are  to  sections.] 


Mathias  v.  Sellers,  161. 

Mather  v.  Gordon,  461. 

Mathews  v.  Atchison,  etc.  R.  Co. 

644. 
Matz  V.  Railway  Co.  674. 
Mauran  v.  Insurance  Co.  474. 
May  V.  Gunther,  142. 
May  V.  Martin,  243. 
Mayer  et  al  v.  Heidelbaok,  et  al. 

244. 
Maynard  v.  Buck,  37. 
Maxwell  v.  Eason,  128. 
Maxwell  v.  National  Bank,  290. 
Mead  v.  Bunn,  220. 
Mechanics'     Bank     v.     Farmers' 

Bank,  366. 
Mechanics'  Bldg.  &  Loan  Ass'n.  v. 

Conover,  278. 
Medbury  v.  Railway  Co.  719. 
Medlin  v.  Wilkinson,  63. 
Megee  v.  Beirne,  161. 
Meier  v.  Pa.  Ry.  Co.  630,  727. 
Melzer  v.  Peninsular  Car  Co.  660. 
Memphis  Bethel  v.  Bank,  243. 
Memphis  etc.  R.  Co.  v.  Stockard, 

534. 
Merchants'  Disp.  Co.  v.  Bloch,  421. 
Merchants'   Dispatch   Transp.   Co. 

V.  Cornforth,  457. 
Merchants'    Dispatch,   etc.    Co.    v. 

Furthmann,  522. 
Merchants'  Bank  v.  N.  R.  R.  T.  Co. 

255. 
Merchants'    Bank   v.   State   Bank, 

286,  294. 
Merchants'    Bank    v.     Thompson, 

303. 
Merchants'  etc.   Bank  v.  Masonic 

Hall,  221. 
Merchants'  etc.  Co.  v.  Smith,  702. 
Merchants'  Nat.  Bank  v.  Hall,  231, 

233,  235. 
Merchants'  Nat.  Bank  v.  Haverhill 

Iron  Works,  244. 
Merchants'  Nat.  Bank  v.  State  Nat. 

Bank,  206. 
Merchant's  Nat.  Bank  v.  Thomp- 
son, 319. 


Merriam  v.  Railroad  Co.  450. 
Merrick  v.  Brainard,  540. 
Merrick  V.  Mich.  Cent.  R.  Co.  487. 
Merrick  v.  Webster,  507. 
Merrifield  v.  Baker,  291. 
Merrill  v.  Am.  Express  Co.  516. 
Merrill  v.  Cleghorn,  349. 
Merrill  v.  Grinnell,  677,  687 
Merritt  v.  Bartholick,  271. 
Merritt  v.  Claghorn,  352. 
Merritt  V.  Earle,  471. 
Merritt  V.  Old   Colony  R.   Co.   171, 

183,  199,  430. 
Mershon  v.  Hobensack,  406,  410. 
Messenger  v.  Pa.  R.  Co.  424,  549, 

609. 
Metcalf  V.  Hess,  349,  357,  360. 
Metzger  v.  Schnabel,  337. 
Meyer  v.  Peck,  462,  464. 
Meyer  v.  Vicksburg,  etc.  R.  Co.  186. 
Mexal  V.  Dearborn,  72. 
M.  H.  O.  R.  Co.  V.  Kirkwood,  533, 

536. 
Michigan  Cent.  R.  Co.  v.  Burrows, 

447,  501. 
Michigan  Cent.  Ry  Co.  v.  Coleman, 

635,  661. 
M.  C.  R.  Co.  V.  Curtis,  471. 
Michigan  Cent.  R.  Co.  v.  Gilbert, 

626. 
Mich.    Cent.   R.   Co.   v.   Hale,   488, 

513,  520. 
Mich.  Cent.  R.  Co.  v.  Phillips,  255, 

256. 
Mich.   Southern  R.  Co.  v.  Caster, 

456. 
Michigan  Southern  &  N.  Ind.  R.  R. 

Co.  V.  McDonough,  488. 
Middleton  v.  Stone,  3. 
Midgeley  v.  Slocum,  312. 
Midland  R.  Co.  v.  Bromley,  536. 
Miles  V.  Reinger,  242. 
Miles  V.  Walther,  308. 
Mill    Creek    Township    v.    Stock- 
yards, 75. 
Millikin  v.  Jones,  161. 
Milliner  v.  Florence,  375. 
Miller  v.  Dayton,  79. 


Ivi 


TABLE  OF  CASES, 


[References   are   to   sections.] 


Miller  v.  Gettysburg  Bank,  316. 

Miller  v.  Marston,  IGl. 

Miller  v.  Railroad  Co.  462. 

Miller  v.  State,  172. 

Millhiser  etc.  Co.  v.  (Jallego,  etc. 

Co.  175. 
Milliorn  v.  Clow,  175. 
Milloy  V.  Grand  Trunk  R.  Co.  186. 
Mills  V.  Shirley,  387. 
Milwaukee  v.  Arms,  712. 
Milwaukee  Malt  Extract  Co.  v.  Chi- 
cago, etc.  R.  Co.  444. 
Mims  V.  Mitchell,  128. 
Minet  v.  Forester,  83. 
Minor  v.  Norwich,  etc.  R.  Co.  545. 
Mirandona  v.  Burg,  730. 
Mitchel  V.  Hotchkiss,  722. 
Mitchell  V.  Green,  252. 
Mitchell  V.    McRoberts,    294,     298, 

301. 
Mitchell  V.   Railway  Co.   727. 
M.  K.  &  T.  Ry.  Co.  v.  Carter,  515. 
Missouri  Pac.  R.  Co.  v.  Evans,  654. 
Missouri  Pac.  R.  Co.   v.  Fagin,  489. 
Missouri,  etc.  R.  Co.  v.  Foster,  644. 
Missouri  Pac.  R.  Co.  v.  Hall,  494. 
Missouri    Pac.    R.    Co.    v.    Heiden- 

heimer,  561. 
Missouri  Pac.  R.  Co.  v.  Ivey,   597, 

666. 
Missouri  Pac.  R.  Co.  v.  McFadden, 

439. 
Missouri  R.  R.  v.  Mackey,  628. 
Missouri,  etc.  R.  Co.  v.  Patrick,  512. 
Missouri,   etc.   R.   Co.  v.   Williams, 

602. 
Missouri  Pac.  Ry.  Co.  v.  Wortham, 

635. 
Moeran  v.  N.  Y.  Poultry  Ass'n,  93. 
Moffatt  Com.  Co.  v.  Union  Pac.  R. 

Co.  498. 
Moffatt  V.  Van  Doran,  228. 
Mohr  V.  Chicago,  etc.  R.  Co.  581. 
Mohr  V.  Railway  Co.  187. 
Monongahela  Ins.  Co.   v.  Chester, 

353. 
Montgomery,  etc.  R.  Co.  v.  Kolb  et 

al.  432,  452. 


Montreal  Bank  v.  J.  E.  Potts,  etc. 

Co.  75. 
Moody  V.  Springfield  St.  R.  Co.  657. 
Moore  V.  Long  Beach  Co.  337. 
Moore  v.  Railway  Co.  646. 
Moore  v.  Rider,  244. 
Moors  V.  Reading,  238. 
Moorse  v.  Jagode,  167. 
Moran  Bros.  Co.  v.  Northern  Pac. 

R.  Co.  559. 
Moran  v.  Portland   Steam  Packet 

Co.  57. 
Mores  v.  Norris,  410. 
Morgan  v.  Conydon,  64. 
Morgan  v.  Portland,  366. 
Morgan  v.  Ravey,  358. 
Moriarty  v.  Porter,  123. 
Morris  Canal   Co.   v.   Fisher,   224, 

317. 
Morris    Canal    &    Banking   Co.    v. 

Lewis,  317. 
Morris  v.   Lowe,   82. 
Morris  v.  Nixon,  252. 
Morrison  v.  Street  Car  Co.  661. 
Morse  v.  Androscoggin  R.  Co.  72. 

78. 
Morse  v.  Crawford,  211. 
Morton  v.  Fairbanks,  150. 
Morton  v.  Railroad  Co.  625. 
Mosher  v.  Railway  Co.  639. 
Mosher  v.  St.  Louis,  etc.  R.  Co.  644. 
Moses  V.    Boston   &   Maine  R.    Co. 

439,  520,  522,  581,  583. 
Moses  V.  Railway  Co.  189. 
Moses  Ex'r  v.  Grainger,  313. 
Moses  V.  Port  Townsend  S.  Ry.  Co. 

556. 
Moses  V.  Trice,  293. 
Moss  V.  Battis,  410. 
Moulton  V.  Phillips,  200. 
Mowers  v.  Fethers,  367,  373. 
Mowrey  v.  Walsh,  221. 
Moylan  v.  Second  Ave.  R.  Co.  661. 
Moynahan  v.  Moore,  294,  298. 
Mount  Holly,  etc.  Turnpike  Co.  v. 

Ferree,  247,  249. 
Mudgett  V.  Bay  State,  692. 
Muirhead  v.  Kilpatrick,  316. 


TABLE   OF    CASES, 


Ivii 


[References  are  to  sections.] 


Muldoon  V.  Seattle,  etc.  Co.  667. 
Mulhall  V.  Quinn,  226. 
Mullen  V.  Wisconsin,  etc.  Co.  638. 
Mulligan  V.  Ill  Cent.  R.  Co.  530. 
Mulligan  v.  Northern  Pac.  R.  Co. 

186. 
Munger  v.  Albany  City  Nat.  Bank, 

313. 
Munn  V.  Illinois,  170. 
Munson  v.  Porter,  64. 
Murchison  v.  Sergent,  360. 
Murphey  v.  Partsch,  292. 
Murray  v.  Marshall,  373. 
Murray  v.  South  Carolina  Railroad 

Co.  624. 
Murray  v.  Warner,  569. 
Murris  v.  New  H.   Steamboat  Co. 

517. 
JVEuschamp  v.  Lancaster,  etc.  R.  Co. 

528,  529,  530. 
Muster  v.  Chicago,  M.  &  St.  P.  Ry. 

Co.  206. 
Myerv.  St.  Louis,  etc.  R.  Co.  63S. 
Myers  v.  Bank,  233. 
Myers  v.  Cottrill,  367. 
Myers  v.  Walker,  202. 
Myning  v.  Railway  Co.  660. 
Myrick  v.  Railroad  Co.  528,  530. 


N. 


Nagler  v.  Pacific  Wharf  Co.  251. 

Nash  V.  Page,  168. 

Nashville   etc.  R.  Co.  v.  Flake,  638. 

Nashville,  etc.  R.  Co.  v.  Jackson, 
472. 

Nashville,  etc.  R.  Co.  v.  Jones,  633. 

Nashville,  etc.  R.  Co.  v.  King,  472. 

National,  etc.  Banking  Co.  v.  Dela- 
ware, etc.  R.  Co.  563. 

National  Bank  of  Commerce  v. 
Chicago  R.  Co.  452. 

National  Bank  of  Illinois  v.  Baker, 
303. 

National  Bank,  etc.  v.  Baltimore, 
etc.  R.  Co.  458. 

National  Bank  v.  Crocker,  254. 

-National  Bank  v.  Graham,  50. 


National  Bank  v.  Langdon,  168. 
National  Bank  v.  Railroad  Co.  462. 
National   Exch.    Bank   v.    Wilder, 

178. 
National   Revere   Bank  v.   Morse, 

244. 
Naugatuck    Ry.    Co.    v.    Beardsley 

Scythe  Co.  544. 
Naugatuck    R.    Co.    v.    Waterbury 

Button  Co.  530. 
Navigation  Co.  v.  Bank,  515. 
Negus  V.  Simpson,  211. 
Neal  V.  Wilcox,  336,  337. 
Neill  &  Ellingham  v.  Produce  Co. 

255. 
Neimeyer  Lumber  Co.  v.  Burling- 
ton, etc.  R.  Co.  590. 
Nelson  V.  Brown,  23,  172. 
Nelson  v.  Eaton,  243. 
Nelson  V.  Edwards,  313. 
Nelson  v.  Hudson  River  R.  Co.  435, 

509. 
Nelson  V.  Wellington.  313. 
Nesbitt  V.  Macon  Bank,  238. 
Newberry  v.  Detroit,  etc.  Co.  251. 
Newhall  v.  C.  P.  R.  R.  Co.  260. 
Newhall  v.  Varges,  559. 
Newsome  v.  Davis,  317. 
Newton  v.  Fay,  252. 
Newton  v.  Trigg,  352. 
New     Brunswick      Steamboat     & 

Trans.  Co.  v.  Tiers,  434. 
New  England   Exp.   Co.   v.   Maine 

Cent.  R.  Co.  550. 
New    England    Ins.    Co.    v.    The 

Sarah  A.nn,  542. 
New  England  v.  Railroad  Co.  549. 
N.  H.  etc.  Co.  V.  Camel,  558. 
N.  J.  etc.  Co.  V.  Brockett,  634,  653, 

654. 
N.  J.  etc.  Co.  V.  Pollard,  727. 
New  Jersey  Electrical  Ry.  Co.   v. 

N.    Y.,    L.    E.    &    W.    R.    R.    Co. 

136. 
New  Jersey  Nav.  Co.  v.  Merchants' 

Bank,  520,  522. 
New  Jersey  Steam  Transportation 

Co.  V.  Merchants'  Bank,  509. 


Iviii 


TABLE  OF  CASES. 


[References  are  to  sections.] 


New  York  Cent.  R.  Co.  v.  Davis, 
557. 

New  York  Cent.  &  H.  R.  Co.  v. 
Davis,  558. 

New  York  Cent.  &  H.  R.  Co.  v. 
Standard  Oil  Co.  538. 

New  York,  etc.  R.  Co.  v.  Bennett, 
640. 

New  York,  etc.  v.  Cromwell,  457. 

New  York,  etc.  R.  Co.  v.  Enches. 
662. 

New  York,  etc.  R.  Co.  v.  Feely,  640. 

New  York,  etc.  R.  Co.  v.  New  Jer- 
sey, etc.  Co.  77,  81. 

N.  Y.,  L.  E.  &  W.  Ry.  Co.  V.  N.  J. 
Electric  Ry.  Co.  126,  127. 

N.  Y.,  L.  E.  &  W.  R.  Co.  V.  Winter, 
640. 

N.  Y.  &  N.  H.  R.  Co.  V.  Schuyler, 
249. 

New  Orleans  Canal  &  Banking  Co. 
V.  Montgomery,  270. 

Nichols  V.  Holliday.  387. 

Nichols  V.  Smith,  435. 

Nicoll  V.  Railway  Co.  698. 

Nitro-glycerine  Case,  444. 

Nobels  V.  Christian,  etc.  Co.  225. 

Noble  V.  Milliken,  360. 

Noble  V.  Railway  Co.  608. 

Nolan  V.  N.  Y.  Co.  41. 

Nolton  V.  Western  R.  Corp.  597. 

Norfolk  etc.  Co.  v.  Barnes,  558. 

Norfolk,  etc.  R.  Co.  v.  Reeves,  517. 

Norfolk,  etc.  Railway  Co.  v.  Shott, 
598. 

Norfolk,  etc.  Railway  Co.  v.  Tan- 
ner, 670. 

Norton  V.  Baxter,  273,  298. 

Norton  V.  Plumb,  231. 

Norton  v.  Woodruff  174. 

North  Chicago  Street  R.  Co.  v. 
Baur,  657. 

North  Chicago  Street  Ry.  Co.  v. 
Cook,  617. 

North  Chicago  Street  Car  Co.  v. 
Thurston,  597. 

North  Chicago  Street  Co.  v.  Wil- 
liams, 595. 


North  Chicago,  etc.  Co.  v.  Zeiger, 

730. 
Northern  German  Lloyd  v.  Heyle, 

545. 
Northern  Pac.  R.  Co.  v.  American 

Trading  Co.  494. 
Northern  Pac.  R.   Co.  v.  Commer- 
cial Nat.  Bank,  561. 
Northern  Pac.  Ry|  Co.  v.  Herbert, 

629. 
Northern  Pacific  v.  Pauson,  640. 
Northwest  Nat.  Bank  v.  Thompson 

Mfg.  Co.  276. 
Norway  Plains  Co.  v.  Boston  &  M. 

R.  Co.  424,  581,  582. 
Norwegian  Plow  Co.  v.  Clark,  23. 
Norwood  V.  Guerdon,  269. 
Nugent  V.  Smith,  408,  412. 
Nutting   V.    Connecticut   River   R. 

Co.  528,  530. 


o. 


Oakes  v.  Railway  Co.  677,  679,  680. 
Gates  V.  National  Bank,  243. 
Oatis  V.  Gardner,  250,  251. 
Ober  V.  Gallagher,  270. 
O'Brien  v.  Gilchrist,  462. 
O'Brien  v.  Moffit,  275. 
O'Brien  v.  Norris,  588. 
Ocean  S.  S.  Co.  v.  Matthews,  625. 
Ocean  S.  S.  Co.   v.  Way,  679. 
O'Connor  v.  Forster,  456. 
O'Dell  V.  Leyda,  24,  172. 
Oden  V.  Saunders,  170. 
Offerman  v.  Union  Depot  Co.  662 
O'Flaherty  v.  Railway  Co.  730. 
Ogden  V.  Lathrop,  303. 
Ogdensburg  R.  Co.  v.  Pratt.  530. 
Ohio,  etc.  Ry.  Co.  v.  Nickless,  666. 
Ohio,  etc.  Co  v.  Selby,  599. 
Ohio  &  M.  R.  Co.  V.  Tindall,  600. 
Ohio,  etc.  R.  Co.  v.  Voight,  598. 
Ohio,  etc.  R.  Co.  v.  Yohe,  62,  492 
O'Kelley  v.  Ferguson,  277. 
Olcott  V.  Supervisors.  170. 
Olds  v.  Railway  Co.  671. 
Oliver  v.  Green,  177. 


TABLE    OF    CASES. 


lix 


[References  are  to  sections.] 


Omaha    Street    Ry.    Co.    v.    Em- 

minger,  730. 
Oman  v.  Bedford,  etc.  Co.  431. 
Onderkirk  v.  Bank,  34,  78,  196. 
Oppenheimer  &  Co.  v.  U.  S.  Exp. 

Co.  482,  510. 
Orange  Co.  Bank  v.  Brown,  482. 
Orchard  v.  Bush,  339. 
Oregon    Short    Line,    etc.    Co.    v. 

Northern  Pac.  R.  Co.  544. 
Oriental      Hotel     Association      v. 

Foust,  350. 
Orndorff  v.  Adams  Express  Co.  520. 
O'Rourke  v.  Chicago,  B.  &  Q.  R.  Co. 

480. 
O'Rourke  v.  Railway  Co.  651,  652. 
Orr  V.  Chicago,  etc.  Co.  536. 
Ortt  V.  Minneapolis,  etc.  R.  Co.  530. 
Osborn  v.  Florida,  551. 
Osgood  V.  Nichols,  52. 
Ostrander  v.  Brown,  575. 
Owen  V.  Boyle,  167. 
Oxford  V.  Prior,  369. 
Oxlade  v.  Northeastern  R.  Co.  550. 
Oxley  V.  Railway  Co.  698. 


Pacific  Coast  S.  S.  Co.  v.  Bancroft- 
Whitney  Co.  516. 

Pacific  Express  Co.  v.  Darnell 
Bros.  494. 

Pacific  C.  W.  L.  R.  Co.  v.  Hallo- 
well,  500. 

Pacific  &  C.  R.  Co.  v.  Hazen,  500. 

Pacific  Exp.  Co.  v.  Shearer,  561. 

Pacific  Ry.  Co.  v.  Stern  &  Spiegle, 
562. 

Packer  v.  Getman,  191. 

Paine  v.  Packard,  307. 

Pennsylvania  R.  Co.  v.  Am.  Oil 
Works,  591. 

Pennsylvania  Canal  Co.  v.  Burd, 
427. 

Pennsylvania  Steel  Co.  v.  Geor- 
gia, etc.  R.  &  B.  Co.  591. 

Pennsylvania  Co.  v.  Holderman, 
702. 

6 


Pennsylvania,  etc.  Ry.  Co.  v.  Mar- 
ion, 661. 
Pennsylvania  Ry.  Co.  v.  Merriam, 

635. 
Pennsylvania     Cent.     R.     Co.     v. 

Schwarzenberger,  520,  530. 
Palin  V.  Reid,  338. 
Palmer  v.  Atchison,  etc.  R.  Co.  490. 
Palmer  v.  Canal  Co.  614. 
Palmer  v.  Coyle,  123. 
Palmer  v  Delaware,  etc.  Canal  Co. 

631. 
Palmer  v.  Grand  Junction  Ry.  Co. 

488. 
Palmer  v.  Manhattan,  etc.  R.  Co. 

634. 
Palmer  v.  Railway  Co.  660. 
Paramore  v.  Western  R.  Co.  457 
Parish  v.  Stone,  317. 
Parker  v.  Flag,  412. 
Parker  v.  Railroad  Co.  515. 
Parker  V.  Smith,  83. 
Parker  v.  Union  Ice  &  Salt  Co.  205. 
Parmelee  v.  Lowitz,  418. 
Parmeleev.  McNulty,  418. 
Parrott  v.  Byers,  251. 
Parry  v.  Squire,  203. 
Parshall  v.  Eggert,  273. 
Parsons  v.  Hardy,  469,  496. 
Parsons  v.  Montieth,  511. 
Pate  V.  Hoffman,  297. 
Patry  v.  Railway  Co.  648. 
Patterson  v.  Railway  Co.  644. 
Pattison  v.  Culton,  et  al.  590. 
Paulin  V.  Canadian   Pacific  R.   R. 

Co.  640. 
Paul  V.  Penn.  R.  Co.  509. 
Paulmier  v.  Railroad  Co.  625. 
Pearson  v.  Duane,  610.  611. 
Pease  v.  Chicago,  etc.  R.  Co.  625. 
Pease  v.  Railway  Co.  652. 
Peck  V.  North  Staffordshire  R.  Co. 

543. 
Peck  V.  Railway  Co.  612. 
Peet  V.  Railway  Co.  720. 
Pender  v.  Robins,  405. 
Pennington   v.    111.    Cent.    Ry.    Co. 

651. 


Ix 


TxUJLE  OP  CASES. 


[References  are  to  sections.] 


Pennington  V.  Philadelphia  W.  & 
B.  R.  Co.  640. 

Pennsylvania  Co.  v.  Canadian  P. 
Co.  492. 

Pennsylvania,  etc.  R.  Co.  v.  Con- 
nell,  644. 

Pennsylvania  R.  Co.  v.  Jones,  644. 

Pennsylvania  Ry.  Co.  v.  Kilgore, 
663. 

Pennsylvania  R.  Co.  v.  Knight, 
551. 

Pennsylvania  R.  R.  Co.  v.  Oil 
Works,   553. 

Pennsylvania  Ry.  Co.  v.  Roy,  622. 

Penny  v.  Lynn,  224. 

Penrose  v.   Curran,   14. 

People  v.  Elmore,  251. 

People  V.  Gallagher.  613. 

People  V.  Jones,  332. 

People  V.  King,  613. 

People  V.  Robinson.  250. 

People  V.  Utica  Cement  Co.  469. 

Peoria  Mfg.  Co.  v.  Lyons,  23. 

Peoria  Ry.  Co.  v.  Mclntire,  57. 

Peoria,  etc.  R.  Co.  v.  Reynolds,  727. 

Pereira  v.  Central  Pacific  R.  Co. 
462. 

Perkins  v.  Applegate,  306. 

Perkins  v.  Railway  Co.  670. 

Perre  v.  Castro,  298. 

Perry  v.  Thompson,  509. 

Pershing  v.  Railroad  Co.  621,  727. 

Perth  Amboy,  etc.  Asso.  v.  Chap- 
man, 243. 

Peters  v.  Elliott,  254,  256. 

Peters  v.  Jamestown  Bridge  Co. 
271. 

Peterson  v.  Case,  720. 

Petrie  v.  Pennsylvania  R.  Co.  640. 

Pettigrew  v.  Barnham,  360. 

Petty  V.  Overall,  292. 

Peugh  V.  Davis,  252,  281. 

Philadelphia,  etc.  Co.  v.  Anderson, 
633. 

Philadelphia  Iron,  etc.  Co.  v.  Da- 
vis, 625. 

Philadelphia,  etc.  R.  R.  Co.  v. 
Derby,  599,  621. 


Philadelphia,  etc.  R.  Co.  v.  Hoeflict, 

650. 
Philadelphia   Traction   Co.   v.    Or- 

bann,  597. 
Philadelphia,  etc.  Ry.  Co.  v.  Quig- 

ley,  712. 
Phillips  V.  Couson,  108. 
Phillips  V.  Earle,  et  al.  450. 
Philler  v.  Jewett,  234. 
Phoenix  Insurance  Co.  v.  Church, 

244. 
Phoenix,   etc.   Co.   v.    Dennis,   etc. 

Co.  180. 
Phoenix    Ins.    Co.    v.    Erie    &    W. 

Trans.  Co.  512. 
Pickens  v.  Diecker,  206. 
Pickens  v.  Railway  Co.  652. 
Pickford  v.  Grand  Junction  R.  Co. 

444,  543. 
Picquet  v.  McKay,  404. 
Piedmont    Mfg.    Co.    v.    Columbia 

River  Co.  409. 
Pierce  v.  Faunce,  270. 
Pierce  v.  Railroad  Co.  411. 
Pierce  v.  Robinson,  252. 
Pierce  v.  Schenck,  138. 
Pierce  v.   Southern  Pacific  R.  Co. 

510. 
Pierce  v.  Van  Dusen,  628. 
Pingree  v.  Detroit  L.  &  N.  R.  Co. 

492. 
Pinkerton    v.    Woodard,    337,    352, 

372. 
Piper  V.  Manny,  349,  360. 
Pittsburg  R.  Co.  v.  Barrett,  186. 
Pittsburg,  etc.  R.  Co.   v.  Caldwell, 

659. 
Pittsburg,  etc.  Co.  v.  Higgs,  639. 
Pittsburg,  etc.  Co.  v.  Morton,  et  al. 

715. 
Plaisted  v.  Navigation  Co.  472. 
Piatt  V.  Hibbard,  204. 
Plessy  V.  Ferguson,  551,  613. 
Polk  V.  Melenbacker,  381. 
Pollard   V.  Vinton,    253,   259,    439, 

462. 
Pollect  V.  Landis,  387. 
Pomeroy  v.  Smith,  278. 


T.VBLE    OF    CASES. 


Ixi 


[References   are   to   sections.] 


Ponce  V.  McElvey,  287. 

Pontiac  Natl.  Bank  v.  Lungan,  24. 

Pool  V.  Northern  Pac.  Ry.  640. 

Popham  V.  Barnard,  517. 

Porter  v.  Chicago  R.  Co.  437. 

Porter  V.  Railway  Co.  187,  662. 

Portfield  V.  Humphreys,  412. 

Potts  V.  New  York,  etc.  R.  Co.  558. 

Potts  V.  Plaisted,  294,  298. 

Potter  V.  Thompson,  314. 

Powers  V.  Boston,  etc.  R.  Co.  602. 

Powers  V.  Jughardt,  34,  204. 

Powell  V.  Robinson,  62. 

Powers  V.  Mitchell,  183. 

Pratt  V.  Ogdensburg  R.  Co.  489. 

Pray  v.  Omaha  St.  Car  Co.  637. 

Preistley  v.  Fowler,  624. 

Prescott  V.  Hull,  241. 

Preston  V.  Neale,  70,  109. 

Preston  v.  Prather,  39,  93. 

Preston  v.  Witherspoon,  178. 

Pribble  v.  Kent,  64. 

Price  V.  Dime  Savs.  Bank,  233. 

Price  V.  Hartshorn,  538. 

Price  V.  Oswego,  etc.  Co.  561. 

Price  V.  Powell,  574,  702. 

Price  V.  Railway  Co.  650. 

Prince  v.  Ala.  State  Fair,  93. 

Proctor  V.  Adams,  70. 

Proctor  V.  Nicholson,  375,  378. 

Providence  Coal  Co.  v.  Providence 

&  W.  R.  Co.  550. 
Pullman  Co.  v.  Adams,  551,  647. 
Pullman  Car  Co.  v.  Gavin,  690. 
Pullman,  etc.  Co.  v.  Lowe,  334,  337, 

648. 
Pullman  Car  Co.  v.  Martin,  690. 
Pullman  Car  Co.  v.  Mathews,  690. 
Pullman  Car  Co.  v.  Pollock,  647. 
Pullman  Car  Co.  v.  Smith,  333,  647. 
Purvis  V.  Coleman,  349,  359,  692. 
Putnam  v.  Railroad  Co.  596. 


Q. 


Quarman  v.  Burnett,  714. 
Quigley  v.  Railway  Co.  653. 
Quimby  v.  Railway  Co.  667,  670. 


K. 


Radio  V.  Detroit,  722. 
Radley  v.  Columbia  So.  R.  Co.  b'02. 
Ragan  v.  Aiken,  550. 
Rahmel  v.  Lehndorff,  368. 
Railway  Co.  v.  Axley,  671. 
Railway  Co.  v.  Barrett,  515. 
Railway  Co.  v.  Bausch,  670. 
Railway  Co.  v.  Beebe,  670. 
Railway  Co.  v.  Beggs,  670. 
Railway  Co.  v.  Berchfield,  716. 
Railway  Co.  v.  Berry,  677,  683. 
Railway  Co.  v.  Bowler,  678. 
Railway  Co.  v.  Boyce,  679. 
Railway  Co.  v.  Boyd,  515. 
Railroad  Co.  v.  Brewing  Co.  536. 
Railroad  Co.  v.  Brooks,  604. 
Railway  Co.  v.  Campbell,  515. 
Railway  Co.  v.  Capps,  680. 
Railway  Co.  v.  Cobb,  719. 
Railway  Co.  v.  Coggins,  605. 
Railway  Co.  v.  Conklin,  680. 
Railway  Co.  v.  Cox,  661. 
Railway  Co.  v.  Cravens,  515. 
Railway  Co.  v.  Dickerson,  671.. 
Railroad    Co.  v.    Fraloff,    523,    674, 

679,  683. 
Railway  Co.  v.  Frame,  720. 
Railway  Co.  v.  Friend,  187. 
Railroad  Co.  v.  Hale,  494. 
Railway  Co.  v.  Hawks,  668,  670. 
Railway  Co.  v.  Henderson,  670. 
Railway  Co.  v.  Ives,  661. 
Railway  Co.  v.  Jenkins,  187. 
Railway  Co.  v.  Johnson,  720. 
Railway  Co.  v.  Juntzer,  500. 
Railway  Co.  v.  Jurj%  515. 
Railway  Co.  v.  Keefer,  670. 
Railway  Co.  v.  Lockhart,  720. 
Railway  V.  Lockwood,  39,  509,  515, 

666. 
Railway  Co.  v.  Lowell,  605. 
Railway  Co.  v.  Lyon,  694. 
Railroad  Co.  v.  McGahey,  678. 
Railway  v.  McLaughlin,  666. 
Railway   Co.  v.   Manchester   Mills, 

512. 


Ixii 


TABLE  OP  CASES. 


[References   are  to   sections.] 


Railroad  Co.  v.  Mehlsack,  604. 
Railway  Co.  v.  Mfg.   Co.   515,   522, 

528. 
Railroad  Co.  v.  Miller,  661,  717. 
Railway  Co.  v.  Mudford,  720. 
Railroad  Co.  v.  National  Bank,  244. 
Railroad  Co.  v.  Pollard,  622. 
Railway  Co.  v.  Pratt,  457,  510,  528, 

531,  536. 
Railway  Co.  v.  Read,  670. 
Railroad  Co.  v.  Reynolds,  515. 
Railway  Co.  v.  Scott,  187. 
Railway  Co.  v.  Shepherd,  679,  680. 
Railway  Co.  v.  Stacey,  616. 
Railway  Co.  v.  State,  678. 
Railway  Co.  v.  Stevens,  670,  682. 
Railway  Co.  v.  Stockyard  Co.  682. 
Railway  Co.  v.  Swift,  675,  678. 
Railway  Co.  v.  Walrath,  727. 
Railway  Co.  v.  Williams,  727. 
Raines  v.  Maxwell  House  Co.  360. 
Ramaley  v.  Leland,  360. 
Raming  v.  Metropolitan  St.  Ry.  Co. 

606. 
Ramsey  v.  Laidley,  275. 
Rankin  v.  Shepherdson,  125,  126. 
Ransome  v.   Eastern  Counties  R. 

Co.  550. 
Raphael  v.  Pickford,  574. 
Rathbun  v.  Steamboat  Co.  569. 
Rawls  V.  Deshler,  463. 
Rawson  v.  Holland,  534. 
Ray  V.  Bank  of  Kentucky,  196. 
Rayv.  Ross,  291. 
Ray  V.  State  Bank,  37. 
Raynor  v.  Brewing  Co.  730. 
Read  v.  Amidon,  339. 
Readv.  Spaulding,  421,  471. 
Reader  v.  Anderson,  70. 
Readhead  v.  Midland  R.  Co.  123, 

631,  632. 
Reddington  v.  Traction  Co.  660. 
Redmond  v.  Liverpool,  etc.  Steam- 
boat Co.  575. 
Reed  v.  Wilmington  Steamboat  Co. 

468. 
Reefe  v.  Brackett,  213. 
Reeves  v.  Plough,  316. 


Reeves  v.  Scully,  270. 

Reichenbach  v.  Mckee,  278. 

Reidenbach  v.  Tuck,  213. 

Reinstine  v.  Watts,  58. 

Reizentein  v.  Marquardt,  79. 

Reg.  V.  Hill,  167. 

Reg.  V.  Reymer,  348. 

Re  Lanaux's  Succession,  237o. 

Relyea  v.  Rolling  Mill  Co.  462. 

Re  Mosser's  Estate,  234. 

Rettner  v.  Minnesota,  etc.  Co.  214. 

Rex  V.  Ivens,  343,  345. 

Reynolds    v.    Boston,    etc.    R.    Co. 

588,  589. 
Reynolds  v.  Street  Ry.  Co.  651, 
Rhinlander  v.  Barrow,  318. 
Rice  V.  Boston  R.  Corp.  581. 
Rice  V.  Dwight  Mfg.  Co.  516. 
Rice  V.  Nixon,  178. 
Rice  V.  Railway  Co.  187,  509. 
Rice  V.  Stone,  226. 
Richard  v.  Detroit,  etc.  R.  Co.  644. 
Richards,  et  al.  v.  Doe,  et  al.  464. 
Richards  v.  Rice,  235. 
Richardson,   et  al.  v.  Goddard,  et 

al.  575. 
Richardson  v.  Nathan,  255. 
Richardson  v.  Olmstead,  23. 
Richardson  v.  Wyman,  312. 
Richberger   v.    American   Ex.    Co. 

638. 
Riches  v.  Briggs,  2. 
Richmond,  etc.  Co.  v.  Garthright, 

637. 
Richmond  &  Co.  v.  Jefferson,  638. 
Richmond,   etc.   R.   Co.   v.   Payne, 

512. 
Richmond,  etc.  R.  Co.  v.  Scott,  662. 
Richmond  v.  Second  Ave.  Railway 

Co.  662. 
Richmond  v.  Smith,  349,  352. 
Rickerson  v.  Railroad  Co.  530. 
Ricketts  v.  Chesapeake,  etc.  R.  Co. 

634. 
Ricketts  v.  Railway  Co.  661,  714. 
Rider  v.  Union  India  Rubber  Co. 

74. 
Riley  v.  Home,  467. 


TABLE  OF  CASES. 


Ixiii 


[References  are  to  sections.] 


Rives  V.  M'Losky,  318. 

,R.  L.  Polk  &  Co.  V.  Melenbacker, 

334. 
Roberts  v.  Farmers'  Bank,  275. 
Roberts  V.  Stuyvesant,  62. 
Roberts  v.  Thompson,  302. 
Robertson  v.    Boston,    etc.    R.    Co. 

595. 
Robertson  v.  Railway  Co.  646. 
Robins  &  Co.  v.  Gray,  371,  379,  381. 
Robins  v.  Memphis,  462. 
Robinson  v.  Baker,  383,  555. 
Robinson  v.  Baltimore  &  O.  Ry.  Co. 

445. 
Robinson  v.  Chittendon,  575. 
Robinson  v.  Larrabel,  72. 
Robinson  v.  Larrebee,  386. 
Robinson  v.    Memphis    R.    Co.    62, 

462. 
Robinson  V.  Stafford,  300. 
Robson  V.  Swart,  176. 
Rochester  v.  Jones,  255. 
Rock  V.  Nichols,  251. 
Rockwell  V.  Proctor,  356. 
Roddy  V.  Railway  Co.  644. 
Rode  V.  Lee,  20. 
Roderick  v.  Railroad  Co.  483. 
Rogers  v.  Grothe,  150. 
Rogers  v.  Kennebec  S.  Co.  596,  670. 
Rogers  Locomotive,  etc.  Works  v. 

Erie  R.  Co.  449. 
Rogers  V.  Railway  Co.  670. 
Rogers  v.  Steamboat  Co.  667. 
Rogers  V.  Stophel,  171,  199,  202. 
Rogers  v.  Thomas,  586. 
Rogers  v.  Weir,  62. 
Rolfe  V.  Lake  Shore,  etc.  R.   Co. 

536. 
Rome  R.  Co.  v.  Sullivan,  Cabot  & 

Co.  530. 
Rommel  v.  Schanbacher,  638. 
Root  v.  Great  Western  R.  Co.  524, 

530,  531. 
Root  V.  Long  Island  R.  Co.  550. 
Root  v.  N.  Y.  Cent.  R.  Co.  647. 
Rootv.  Sleeping  Car  Co.  691. 
Rosa  V.  Brotherson,  244. 
Rose  V.  Railway  Co.  670. 


Roseman  v.  Railway  Co.  654. 
Rosenfield  v.  Express  Co.  523,  721. 
Rosenfield  v.  Railroad  Co.  523. 
Rosenplaenter  v.  Roessle,  375. 
Ross  V.  Barker,  305. 
Ross  V.  Leggett,  713. 
Ross  V.  The  Ship  Active,  542. 
Ross  V.  Troy  &  B.  R.  Co.  481. 
Rothoseer  v.  Cosil,  139. 
Roulston  V.  McClelland,  79. 
Rounds  V.  Del.  etc.  Ry  Co.  638. 
Roux  V.  Lumber  Co.  625. 
Rowan  v.  State  Bank,  291. 
Rowland  v.  Jones,  41. 
Rowland  v.  New  York,  etc.  R.  Co. 

558. 
Rowley  v.  Bigelow,  174,  586. 
Roy  &  Roy  v.  Northern  Pac.  462. 
Rozet  V.  McClennan,  300,  307. 
Rubens  v.  Ludgate  Hill  Steam  Co. 

513,  516. 
Rubenstein    v.    Cruikshanks,    358, 

360. 
Rucker  v.  Donovan,  591. 
Rudell  V.    Grand  Rapids,    etc.    Co. 

202,  214. 
Rudell,  et  al.  v.  Ogdensburg  Tran- 
sit Co.  506,  535. 
Ruggles  V.  Fay,  37. 
Runyan  v.  Railroad  Co.  677,  682. 
Russell  V.  Butterfleld,  366. 
Russell  et  al.  v.  Erie  R.  Co.   509. 
Russell  V.  Fagin,  338. 
Russell  Mfg.  Co.  v.  New  Haven  S. 

S.  Co.  538,  578. 
Russell  V.  Southern,  252 
Russell  V.  Sunbury,  722. 
Ryan  v.  Gilmer,  617. 
Ryckman  v.  Hamilton,  etc.  R.  Co. 

670. 
Ryder  v.  Hall,  464. 

s. 

Sadowski  v.  Car  Co.  625,  661. 
Safe  Deposit  Co.  v.  Pollock,  196. 
Sager  v.  Portsmouth  St.  P.  &  E.  R. 
Co.  457. 


Ixiv 


TABLE  OP  CASES. 


[Keferences  are   to   sections.] 


Sales  V.  Western  Storage  Co.  621. 
Salinger  v.   Simmons,  433. 
Saltus  V.  Everett,  259,  555. 
Samms  v.  Stewart,  399,  410. 
Samuels  v.  Louisville  &  N.  R.  Co. 

550. 
San  Antonio,  etc.  R.  Co.  v.  Barnett, 

513. 
San  Antonio  Nat.  Bank  v.  Blocker, 

231. 
Sanborn  v.  Trading  Co.  625. 
Sandys  v.  Florence,  369. 
Sandford  v.  Catawissa,  etc.  R.  Co. 

424,  550. 
Sargent  v.  Gile,  79. 
Satles  V.  Hallock,  24. 
Sattler  v.  Hallock,  138. 
Savannah,  etc.  R.  Co.  v.  Bonaud, 

664. 
Savannah,  etc.  R.  Co.  v.  Boyle,  638. 
Savannah,  etc.   R.   Co.  v.  Talbest, 

547. 
Scaling  v.  Pullman  Palace  Car  Co. 

647. 
Schaller  v.  Railway  Co.  510. 
Scheffer  v.  Corson,  367. 
Schenk  v.  Strong,  14. 
Schloss  V.  Feltus,  244. 
Schmidt  v.  Blood,  190,  204. 
Schmidt  v.  Steamship     Pennsylva- 
nia, 590. 
Schneider  v.  Evans,  556. 
Schnips  V.  Strum,  205. 
Schoepper  v.  Hancock,  etc.  Co.  661. 
Schooner  Freeman  v.  Buckingham, 

439. 
SchrafE  v.  Meyer,  255. 
Schroeder  v.  Railroad  Co.  625. 
Schropshier  v.  Sidebottom,  34,  204. 
Schroyer  v.  Lynch,  390. 
Schubach  v.  McDonald,  639. 
Schuler  v.  Lynch,  389. 
Scofield  V.  Lake  Shore  &  M.  S.  R. 

Co.  550. 
Scofield  V.  Pennsylvania  Co.  640. 
Scott  V.  Churchill,  369. 
Scott  et  al.  V.  Delehunt  et  al.  160. 
Scott  V.  First  Nat.  Bank,  275. 


Scott  V.  National  Bank  of  Chester 

Valley,  51. 
Scott    V.    Pequonnock   Nat.    Bank, 

251. 
Scranton  v.  Baxter,  108. 
Scripture  v.  Francistown  Soap  Co. 

251. 
Searfe  v.  Morgan,  161. 
Sears  v.  Eastern  Ry.  Co.  664. 
Seasongood  v.  Railway  Co.  687. 
Seasongood  v.  Tenn.  &  O.  Tr.  Co. 

443. 
Second    National    Bank    v.     Wal- 

bridge,  174,  176.  26^. 
Secord  v.  Buffalo,  etc.  Co.  559. 
Selby  V.  Detroit  Ry.  Co.  657. 
Selesky  v.  Vallmer,  204. 
Sell  V.  Ward,  303. 
Sellers  v.  Market  St.  R.  Co.  657. 
Sergeant  v.  Essex  Ry.  Co.  251. 
Sergeant  v.  Franklin  Ins.  Co.  25L 
Seway  v.  Holloway,  439. 
Seybolt  v.  New  York  R.  Co.  598. 
Shadford  v.  Ann  Arbor  St.  Ry.  Co. 

201. 
Shafer  v.  Gilmer,  621. 
Shannon  v.  Boston,  etc.  R.  Co.  596. 
Sharkey  v.  Lake  Roland  Co.  662. 
Shawv.  Berry,  349,  352. 
Shaw  V.  Kaler,  47,  136. 
Shaw  V.  Perry,  349. 
Shaw  V.  Railroad  Co.  257,  259. 
Sheffer  v.  Willoughby,  368,  371. 
Sheldon  v.  Railway  Co.  660. 
Shelton  v.  Lake  Shore  &  M.  S.  R. 

Co.  640. 
Shelton  v.  Merchants'  Transp.  Co. 

452. 
Shelton  v.  Railway  Co.   648. 
Shepardson  v.  Cary,  173. 
Shepherd  v.  Bristol,  etc.  R.  Co.  183. 
Sheppard,  etc.  R.  Co.  v.  Burrows, 

590. 
Sherman   v.    Menominee,    etc.    Co. 

625. 
Shewalter  v.  Mo.  Pac.  R.  Co.  531. 
Shields  v.  Lozier,  298. 
Shipman  v.  Aetna  Ins.  Co.  251. 


TABLE    OP    CASES. 


Ixv 


[References   are  to   sections.] 


Shoecraft  v.  Bailey,  337. 
Shriver  v.  Railroad  Co.  536. 
Shultz  V.  Wall,  359. 
Sibley  v.  Aldrich,  349,  352,  357. 
Sibley  v.  Quinsigmond  Nat.  Bank, 

251. 
Silverman  v.  Railway  Co.  716. 
Simonoff  v.  Fox,  34,  204. 
Simons  v.   Great  Western   R.   Co. 

515. 
Simpson  v.  R.  Co.  494. 
Sinclair  v.  Murphy,  52. 
Singer  Mfg.  Co.  v.  Miller,  379,  380, 

381. 
Sinsheimer  et  al.  v.  Whitely,  173. 
Sisson  V.  Cleveland,  etc.  Co.  720. 
Siter  V.  Moritz,  177. 
Slayton  v.  Barry,  14. 
Sleath  V.  Wilson,  714. 
Slee  V.  Manhattan  Co.  252. 
Sleeping  Car  Co.  v.  Diehl,  691. 
Sleeven  v.  Morrow,  302,  316. 
Sloan  V.  Railway  Co.  571,  651. 
Sloane  v.  Southern  Cal.  etc.  R.  Co. 

640. 
Slocum  V.  Fairchild,  520. 
Sloman  v.  Railway  Co.  680. 
Smelting  Co.  v.  Schultz  &  Clary,  3. 
Smiley  v.  Allen,  82. 
Smith  V.  Am.  Coal  Co.  249. 
Smith  V.  Atkins,  225. 
Smith  V.  Car  Works,  625. 
Smith  V.  Crescent  City  Live  Stock 

Co.  250. 
Smith  V.    Elizabethport    Bank    Co. 

34,  93. 
Smith  V.  Estate  of  Smith,  23. 
Smith  V.  First  National  Bank,  51. 
Smith  V.  Jennings,  241. 
Smith  V.  Library  Ass'n,  93. 
Smith  V.  Manhattan  R.  Co.  634. 
Smith  V.  Michigan     Cent.     R.     Co. 

488. 
Smith  V.  Missouri  Pac.  R.  Co.  462. 
Smith  V.  Nashua,  etc.  R.  Co.  183. 
Smith  V.  Nassau  &  Lowell  R.  Co. 

574. 
Smith  V.  N.  Car.  R.  Co.  520. 


Smith  V.   New   York   Cent.   R.   Co. 

511,  536,  597. 
Smith  V.  O'Brien,  213. 
Smith  V.  Railroad  Co.  411,  470. 
Smith  V.  Ry.  Co.  489,  661,  727. 
Smith  V.  St.  Paul,  etc.  R.  Co.  596. 
Smith  V.  Seward,  697. 
Smith  V.  Strout,  297. 
Smith  V.  Wilson,  356,  358,  360,  362, 

560. 
Smoot  V.    Kentucky    Cent.    R.    Co. 

613. 
Sneider  v.  Geiss,  360,  362,  363. 
Snow  et  al.  v.  Carruth  et  al.  452. 
Sofleld  V.  Guggenheim,  627. 
Sokup  V.  Lettillier,  293. 
Sonier  v.  Railway  Co.  660. 
Sonoma  Valley  Bank  v.  Hill,  296, 

297. 
South  Bend  Iron  Works  v.  Cottrell, 

Southard    v.    Minneapolis    R.    Co. 

513. 
Southern,  etc.  Co.  v.  Sanford,  653. 
So.  Ex.  Co.  V.  Kaufman,  480. 
Southern    Exp.    Co.    v.    McVeigh, 

421,  567. 
Southern  Express  Co.  v.  R.  M.  Rose 

Co.  407,  408. 
Southern  Exp.  Co.  v.  Van  Meter, 

561. 
Southern  Express  Co.  v.  Womack, 

353,  474. 
Southern  Pacific  v.  Schorer,  628. 
Southern  R.  Co.  v.   Atlantic  Nat. 

Bank,  561. 
Southern  Ry.  Co.  v.  Heymann,  492. 
Southern  Ry.  Co.  v.  Hunter,  658. 
Southern  R.  Co.  v.  Kinchen,  569. 
Southern  R.  Co.  v.  Webb,  561. 
Southern  Ry.  Co.  Wildman,  653. 
Southerland  v.  Railway  Co.  667. 
Spanglor  v.  St.  Joseph,  etc.  R.  Co. 

611. 
Spaulding  v.  Kendrick,  244. 
Spellman  v.  Rapid  Transit  Co.  727. 
Spence  v.  Chicago,  etc.  R.  Co.  602. 
Spencer  v.  Clark,  267. 


Ix\i 


TABLE  OF  CASES. 


[References   are  to   sections.] 


Spencer  v.  St.  Louis,  etc.  Co.  657. 
Spencer  v.    St.    Louis   Transit    Co. 

595. 
Spice  V.  Bacon,  358. 
Spofford  V.  Boston  &  M.  R.  Co.  550. 
Spooner  v.  Manchester,  124,  125. 
Spriggs  Adm'r  v.  Rutland  R.  Co. 

599. 
Spring  V.  Hagar,  356,  358. 
Springy.  Haskell,  716. 
Sproul  V.  Hemingway,  414. 
Spugeon  V.  Collier,  252. 
Squire  et  al.  v.  N.  Y.  Cent.  R.  Co. 

435,  516. 
Squire  v.  "Western  Union  Tel.  Co. 

512. 
Stack  V.  Cavanaugh,  14. 
Stager  v.  Ridge,  etc.  Ry.  Co.  661. 
Stangher  v.  Green,  61. 
Stanley  v.  Bircher,  368,  369. 
Stanton  v.  Eager,  174. 
Stanton  v.  Leland,  372. 
Starrett  v.  Barber,  109,  291. 
State  V.  Bryant,  173. 
State  V.  Cincinnati,  N.  O.  Ry.  Co. 

550. 
State  V.  Cowdrey,  24. 
State  V.  Ferris,  250. 
State  V.  Frew,  438. 
State  V.  Goss,  444. 
State  V.  Hungerford,  640. 
State  V.  Lake  Rowland,  etc.  R.  Co. 

657. 
State  V.  Lewis,  558. 
State  V.  Maryland  R.  Co.  600. 
State  V.  Moore,  353. 
State  V.  Morse,  210. 
State  V.  Overton,  612,  682. 
State  V.  Peck,  558. 
State  V.  Steel,  334,  343. 
State  V.  Stevenson,  210. 
State  V.  Stockman,  24. 
State  V.  Washburn,  24. 
State  ex  rel.  v.  C.  B.  &  Q.  R.  Co. 

447. 
State  ex  rel.  etc.  v.  Texas,  etc.  R. 

Co.  446. 
State  Ins.  Co.  v.  Sax,  249. 


State  of  Nevada  v.  Pettineli,  250. 
Staub  V.  Kendrick,  677,  688. 
Steamboat  Lynx  v.  King,  502. 
Steamboat   New   World    v.    King, 

411,  622. 
Stearns  V.  Bates,  287. 
Stearns  v.  Marsh,  304. 
Steel  V.  Flagg,  505. 
Steelman  v.  Weiskittle,  305. 
Steeper  v.  McKee,  312. 
Steers  v.  Liverpool  Steamship  Co. 

204,  512,  523. 
Steidl  v.  Minneapolis,  etc.  R.  Co. 

505. 
Steinman  v.  Wilkins,  161. 
Steinway  v.  Brie  R.  Co.  457. 
Steinweig  v.  Erie  Ry.  Co.  630. 
Stephens  v.  Vaughn,  62. 
Sterling  v.   St.  Louis,  etc.  R.  Co. 

528. 
Sterns  v.  Marsh,  290,  300. 
Stevens  v.  Boston  &  Maine  Ry.  Co. 

180. 
Stevens  v.  Boston  &  W.  R.  Corp. 

383. 
Stevenson  v.  Hart  et  al.  563. 
Stevenson  v.  West  Seattle,  etc.  Co. 

611. 
Stewart  v.  Brown,  294. 
Stewart  v.   Cleveland,   etc.   R.   Co. 

513. 
Stewart  V.  Davis,  124. 
Stewart  V.  Lansing,  224. 
Stewart  v.  Lehigh  Valley  R.  Co.  550. 
Stewart  v.  Phoenix  Ins.  Co.  178. 
Stewart  V.  Stone,  138. 
Stewart,  Ralph  &  Co.  v.  Gracy  & 

Bro.  439. 
Stickney  v.  Allen,  72. 
Stickney  et  al.  v.  Allen,  718. 
Stiles  V.  Davis,  492. 
Stimson  v.  Railway  Co.  678,  679. 
Stock  V.  Harris,  390. 
Stock  Yard  Co.  v.  Louisville  R.  Co. 

449. 
Stoddard  Mfg.  Co.  v.  Huntley,  72, 

385. 
Stokes  V.  Saltonstall,  727. 


TABLE   OF    CASES. 


Ixvii 


[References   are   to   sections.] 


Stollenwerck  v.  Thacher,  259,  562. 

Stone  V.  Lidderdale,  228. 

Stone  V.  Railway  Co.  652. 

Story  V.  Krewson,  298. 

Strand  v.  Chicago,  etc.  R.  Co.  659. 

Strauss  v.  Hotel,  etc.  Co.  338. 

Streetor  v.  Brestine,  157. 

Strong  V.  Adams,  540. 

Strong    V.     Certain     Quantity    of 

Wheat,  534. 
Strong  V.  Grand  Trunk  R.  Co.  464. 
Strong  V.  Stewart,  252. 
Strong  V.  Worden,  293. 
Strought  V.  New  York  Cent.  etc.  R. 

Co.  447. 
Strum  V.  Baker,  3,  23,  58. 
Sturgeon  v.  St.  Louis,  etc.  R.  Co. 

489. 
St.  Losky  V.  Davidson,  180. 
St.  Louis  V.  Kilpatrick,  653. 
St.  Louis  V.  Myer,  638. 
St.  Louis  &  S.  P.  R.  Co.  V.  Adams, 

462. 
St.  Louis,  etc.  R.   Co.  v.  Cantrel, 

661. 
St.   Louis  Iron  Mountain,  etc.  R. 

Co.  V.  Commercial  Union  Ins.  Co. 

439. 
St.  Louis,  etc.  R.  Co.  v.  Coolidge, 

494. 
St.  Louis,  A.  &  T.  Ry.  Co.  v.  Fire 

Ass'n  of  Phil.  479. 
St.  Louis,  etc.  R.  Co.  v.  Greenthal, 

638. 
St.  Louis,  etc.  Co.  v.  Hurst,  517. 
St.  Louis,  M.  &  S.  R.  Co.  v.  Insur- 
ance Co.  430. 
St.  Louis,  etc.  Co.  v.  Insurance  Co. 

462. 
St.  Louis,  etc.  R.  Co.  v.  Knight,  176, 

186,  430. 
St.  Louis,  etc.  R.  Co.  v.  Larned, 

561. 
Succession  of  Grayard,  237c, 
Suia  V.  Omel,  342. 
Sullivan  v.  India  Mfg.  Co.  600. 
Sulpho,  etc.  Co.  V.  Allen,  114,  139, 

204. 


Sumner  v.  Hamlet,  240. 

Sunbolf  V.  Alford,  352,  375. 

Sun  Printing,  etc.  Co.  v.  Moore,  23. 

Suydan  v.  Smith,  174. 

Swan  V.  Bourne,  375,  376. 

Swann  v.  Smith,  358. 

Swedish-Am.  Nat.  Bank  v.  Chicago, 

etc.  R.  Co.  4G2. 
Sweet  v.  Barney,  421,  702. 
Swenson  v.  Suave,  etc.  Co.  34. 
Swentzel  v.  Bank,  37. 
Swift  V.  Mosley,  79. 
Swift  V.  Tyson,  244. 
Swoboda  v.  Ward,  625. 
Syndacker  v.  Blatchley,  167. 
Syracuse,  etc.  Co.  v.  Railway  Co. 

730. 
Sykes  v.  The  People,  210. 

T. 

Taggard  v.  Curtenius,  307. 

Taggart  v.  Buckmore,  67. 

Taillon  v.  Mears  et  al.  634. 

Talbott  V.  Railway  Co.  714. 

Talcott  V.  Railway  Co.  680. 

Talty  V.  Fireman,  etc.  Co.  294. 

Tancil  v.  Seaton,  70. 

Tannahill  v.  Tuttle,  273. 

Tansig  v.  Bode  &  Haslett,  204. 

Tarbell  v.  Stuyvesant,  317. 

Taylor  V.  Chester,  229. 

Taylor  v.  Downey,  364. 

Taylor  V.  Grand  Trunk  Ry.  Co. 
622. 

Taylor  v.  Luther,  252. 

Taylor  V.  Monnot,  349. 

Taylor  v.  Page,  270. 

Taylor  V.  Turner,  308. 

Taylor  V.  Tyndall,  554. 

Tembler  v.  Palestine  Ice  Co.  279. 

Temple  Nat.  Bank  v.  Louisville, 
etc.  Co.  461. 

Ten  Brock  v.  Wells,  369. 

Ten  Hopen  v.  Walker,  713 

Terre  Haute  &  I.  R.  Co.  v.  Sher- 
wood, 510. 

Texas  Banking  Co.  v.  Turnley,  235. 


Ixviii 


TABLE  OF  CASES. 


[References  are  to  sections.] 


Texas,  etc.  Co.  v.  Bond,  G52. 
Texas,  etc.  R.  Co.  v.  Byers,  490. 
Texas    &   Pacific  R.    Co.    v.    Dick, 

605. 
Tex.  &  Pac.  Ry.  Co.  v.  Fainbrough, 

489. 
Tex.   &  Pac.   R.   Co.  v.   Hamilton, 

631. 
Texas,  etc.  R.  Co.  v.  Kalp,  496. 
Texas  Pac.  R.  Co.  v.  Payne,  640. 
Texas  &  Pac.  R.  Co.  v.  Smith,  600, 

640. 
Texas   &  P.   Ry.   Co.  v.   Williams, 

638. 
Textor  v.  Orr,  238 
Thatcher  v.  Pray,  244. 
The  Amelie,  542. 
The  Boskenna  Bay,  577. 
The  Burlington,  414. 
The  Caledonia,  519. 
The  Civilta,  414. 
The  David  &  Caroline,  444. 
The  Delaware,  439. 
The  Dredge,  70. 
The  Edith  L.  Allan,  70. 
The  Edwin,  462. 
The  Ethel,  464. 
The  Gazelle,  546. 
The  Granite  State,  160. 
The  Gratitudine,  542. 
The  Harriman,  504. 
The  Huntress,  480. 
The  Julia  Blake,  542. 
The  Kensington,  511. 
The  Keokuk,  462. 
The  L.  P.  Dayton,  414. 
The  Lady  Franklin,  439,  462,  464. 
The  Lady  Pike,  412. 
The  Loon,  462. 
The  Majestic,  469. 
The  Mary  Bradford,  465. 
The  Niagara,  412. 
The  Nitroglycerine  Case,  476. 
The  Northern  Belle,  457,  472. 
The  Onward,  542. 
The  Packet,  542. 
The  Prize  Cases,  474. 
The  Propeller  Commerce,  412. 


The    Schooner    Emma    Johnston,. 

412. 
The  Schooner  Freeman,  462. 
The  Schooner  Reeside,  412. 
The  Scio,  160. 
The  St.  Joseph,  160. 
The  Success,  537. 
The  Syracuse,  414. 
The  Webb,  414. 
The  Wellington,  462. 
The  Willie  D.  Sandhovel,  430. 
Thickstone  v.  Howard,  352. 
Thomas  v.  Boston,  etc.  R.  Co.  424, 

581,  582. 
Thomas  V.  Day,  183. 
Thomas  V.   Railway    Co.    187,    602,. 

716. 
Thomas  v.  Snyder,  545. 
Thompson  v.  Dill,  292. 
Thompson  v.  Dominy,  174. 
Thompson  v.  Fargo,  702. 
Tnompson  v.  Moesta,  79. 
Thompson  v.  Jordan,  172. 
Thompson  v.  Onley,  242. 
Thompson  v.  Patrick,  290. 
Thompson  v.  Railroad  Co.  704. 
Thompson  v.  Thompson,  177. 
Thompson  v.  Trusdale,  639. 
Thorn  v.  Bank,  293. 
Thorn  v.  Deas,  33. 
Thorington  v.  Smith,  474. 
Thyll  V.  New  York,  etc.  R.  Co.  528. 
Tibby  v.  Railway  Co.  666. 
Tiedeman  v.  Knox,  254. 
Tierber  v.  Burrows,  360. 
Tierney  v.  New  York  Cent.  R.  Co. 

444,  501. 
Tiffany  v.  St.  Johns,  560, 
Timra  v.  M.  C.  R.  R.  626. 
Titus  V.  Railroad  Co.  201. 
Toledo,  etc.  R.  Co.  v.  Beggs,  646. 
Toledo,  etc.  Co.  v.  Brooks,  646. 
Toledo  R.  Co.  v.  Gilvin,  452. 
Toledo,  etc.  R.  Co.  v.  Grush,  635. 
Toledo,    etc.    R.    Co.    v.    Hamilton^ 

489. 
Toledo,  etc.  Co.  v.  Marsh,  653. 
Toledo,  etc.  R.  Co.  v.  Pence,  609. 


TABLE   OF    CASES. 


Ixix 


[References  are  to  sections.] 


Toledo,  etc.  R.  Co.  v.  Railway  Co. 

668. 
Toledo,  W.  &  W.  R.  Co.  v.  Roberts, 

456. 
Toledo,  W.  &  W.  R.  Co.  v.  Thomp- 
son, 489. 
Tomboy  Gold  Mine  Co.  v.  Green, 

294. 
Tooke  V.  Newman,  317. 
Toplitz  V.  Timmins,  214. 
Toronto,  etc.  Co.  v.  Central,  etc.  R. 

Co.  319. 
Torry  v.  Bank  of  Orleans,  305. 
Toub  V.  Schmidt,  338. 
Towne  v.  Wiley,  14. 
Townsend  v.  New  York  Cent.  &  H. 

R.  R.  Co.  640. 
Towson  V.  Havre  de  Grace  Bank, 

338,  365. 
Toy  V.  Long  Island  Co.  516. 
Trace  v.  Pa.  R.  Co.  489. 
Transit  Co.  v.  Venable,  600. 
Transp.  Co.  v.  Dater,  515. 
Transp.  Co.  v.  Leysor,  515. 
Transportation  Line  v.  Hope,  414. 
Travis  v.  Thompson,  544. 
Treadwellv.  Davis,  278. 
Treadwell  v.  Whittier,  629,  633. 
Tredwell  v.  Clark,  281. 
Trenton,  etc.  R.  Co.  v.  Guarantors, 

etc.  Co.  667. 
Trevor  v.  U.  &  S.  R.  Co.  431. 
Trezona  v.  Railway  Co.  643,  650. 
Trimble  v.  New  York  Co.  468. 
Trimble  v.  Railway  Co.  680,  682. 
Tripp  v.  Brownell,  226. 
Trowbridge  v.  Chapin,  437. 
Trumbull  v.  Ericson,  637. 
Tucker   v.   New   Hampshire    Savs. 

Bank,  243. 
Tucker  v.  Taylor,  72. 
Tudor  V.  Lewis,  40. 
Tuff  V.  Warman,  657. 
Tulane  Hotel  Co.  v.  Holohan,  361, 

374. 
Tuller  V.  Talbot,  621. 
Tullis   V.    Lake   Erie,    etc.    R.    Co. 

628. 


Turney  v.  Wilson,  410. 
Turrell  v.  Crawley,  375. 
Tuttle  V.  Robinson,  238. 
Tuxworth  V.  Moore,  173,  254,  277a. 
Twombley  v.  Cent.  Park  R.  Co.  663. 
Tyson  v.  Ewing,  712. 

u. 

Udell  V.  St.  Ry.  Co.  608. 
Underbill  v.  Railway,  660. 
Ulrich  V.  Railway  Co.  667. 
Union  Pac.  Ry.  Co.  v.  Cappier,  620. 
Union  Ex.  Co.  v.  Graham,  443. 
Union  Pac.  R.  Co.  v.  Hepner,  432. 
Union   Pacific   R.    Co.    v.    Nichols, 

597,  646. 
Union  Pac.  R.  Co.  v.  United  States, 

550. 
Union  Stockyards  Co.  v.  Mallory, 

34. 
Union  Stock  Yards  Co.  v.  Western 

Land,  etc.  Co.  23. 
Union   Trust   Co.   v.    Rigdon,    313, 

318. 
U.  S.  Express  Co.  v.  Backman,  421. 
United  States  v.  Braney,  375. 
U.  S.  Express  Co.  v.  Council,  510. 
U.  S.  Exp.  Co.  V.  Hutchins,  561. 
United  States  Exp.  Co.  v.  Keefer, 

569. 
United  States  v.  Power,  399. 
United  States  Exp.  Co.  v.  Rush  et 

al.  530. 
United  States  v.  Washington,  613. 
Upham  v.  Detroit,  etc.  Co.  608. 


Y. 


Van  Baalen  v.  Dean,  539. 

Van  Blarcom  v.  Broadway  Bank, 

277a. 
Van  Buren  v.  Olmstead,  252. 
Van  Dusen  v.  Letellier,  625. 
Van  Dusen  v.  Railroad  Co.  640,  651. 
Van  Eman  v.  Stanchfield,  287. 
Van  Hansen  v.  Kanouse,  294. 
Van  Horn  v.  Kermit,  692. 


Ixx 


TABLE  OF  CASES. 


[References  are  to  sections.] 


Van  Hoozer  v.  Corey,  226. 
Van  Matter  v.  Ely,  312. 
Van  Riper  v.   Baldwin,  242. 
Van  Santvoord  v.  St.  John,  530. 
Vance  v.  Throclvmorton,  352. 
Vandegrift  v.  West  Jersey,  etc.  Co. 

595. 
Va.  Cent.  Ry.  Co.  v.  Sawyer,  629. 
Vandewater  v.  Mills,  462. 
Vass  V.  Riddick,  558. 
Vermillion  v.  Parsons,  47. 
Verner  v.  Switzer,  410,  421,  423. 
Vernon  v.  Bethell,  252. 
Vickers  v.  Battershall  et  al.,  281. 
Vicksburg  v.  Ragsdale,  495,  720. 
Vigo  Agrl.  Society  v.  Brumflel,  58, 

96. 
Vincent  v.  Cornell,  129. 
Vinton  v.  Baldwin,  558. 
Vinton  v.  Middlesex  Ry.  Co.  613. 
Virginia  &  Carolina  Co.  v.  Nair  & 

Persol,  237a. 
Virginia,  etc.  R.  Co.  v.  Hill,  640. 
Voight  V.  Railway  Co.  666. 

w. 

Wabash,  etc.  R.  Co.  v.  Brown,  511. 
Wabash  R.  Co.  v.  Harris,  530. 
Wabash  Ry.  Co.  v.  Illinois,  551. 
Wabash,  etc.  R.  Co.  v.  Jaggerman, 

530. 
Wabash  R.  Co.  v.  McDaniels,  626. 
AVabash,  etc.  v.  Peyton,  509. 
Wabash,  etc.  R.  Co.  v.  Rector,  634. 
Wade  V.  Lutcher,  etc.  Co.  426. 
Wagner   v.    Missouri    Pac.    R.    Co. 

602. 
Waite  V.   Gilbert,  720. 
Walch  V.   Blakely,   590. 
Walcott  V.  Keith,  73. 
Wald  V.  Pittsburg  R.  Co.  469,  471, 

655,  695. 
Walden  v.  Karr,  33. 
Waldie  v.  Doll,  225. 
Waldon  v.  Finch,  202. 
Waldron  v.  Murphy,  294. 
Walker  v.  Baxter,  312. 
Walker  v.  Butterick,  3. 


Walker  v.  Detroit  Transit  Ry.  Co. 

252. 
Walker  v.  Georgia,  etc.  Co.  657. 
Walker  v.  Jackson,  416. 
Walker  V.  Midland  R.  Co.  369: 
Walker  v.  Sharp,  338. 
Walker  v.  Vicksburg  R.  Co.  662.  ' 
Walker  v.  Walker,  252. 
Wallace  v.  Finnagan,  297. 
Walling  V.  Potter,  334. 
Walpert  v.  Rohan,  332. 
Walport  V.  Bohn,  34. 
Walsh  V.  Porterfield,  356,  359,  363. 
Walter  v.   Ross,   590. 
Walters  v.  Detroit,  etc.  Ry.  189. 
Wamser  v.  Browning,  King  &  Co. 

34, 
Wanzer  v.   Carey,   271. 
Ward  V.  Elkins,  715. 
Ward's    Cent.    &    P.    Lake    Co.    v. 

Elkins,  456. 
Ward  V.  Missouri  Pac.  R.  Co.  513. 
Warden  v.  Chicago,  etc.  R.  Co.  640. 
Ware  v.  Gay,  727. 
Warfield  v.  Railway  Co.  650. 
Waring  v.  Indemnity  Ins.  Co.  541. 
Warner  v.  Fourth  Nat.  Bank,  243. 
Warner  v.  Railway  Co.  605,  685. 
Warren  v.   Fitchburg  R.   Co.   596, 

630. 
Washington,  etc.  R.  Co.  v.  ?Iickey, 

663. 
Washington  v.  Raleigh,  etc.  R.  Co 

644. 
AVaterfield  v.  Rice,  279. 
Waters  v.  Monarch  Assurance  Co 

177. 
Waters  v.  Simpson,  233. 
Watkins  v.  Roberts,  108. 
Watson  V.  Cross,  343,  375. 
Watson  V.  Hawkins,  271. 
Watson  V.   Louisville,   etc.  R.   Co 

638. 
Watson  V.  Railroad  Co.  439,  662. 
Watson  V.  Watson,  713. 
Watts  V.  Boston  R.  Co.  186. 
Watts  V.  S.  &  O.  Canal  Co.  427. 
Way  V.  Chicago,  etc.  R.  Co.  646. 
Way  V.  Railroad  Co.  604. 


TABLE    OF    CASES. 


Ixxi 


[References  are  to  sections.] 


Weaver  v.  Ann  Arbor  R.  Co.  599. 

Weaver  v.  Barden,  244. 

Weaver  v.  Poyer,  193. 

Webb  V.  Rice,  252. 

Weber  v.  Railway  Co.  653,  661. 

Webster  v.  Fit.chburg,  601. 

Weed  v.  Barney,  570. 

Weed  V.  Railway  Co.  699. 

Weeks  v.  Goode,  560. 

Weeks  v.  McNulty,  368.  370. 

Wehmann   v.    Minneapolis   R.    Co. 

513. 
Weil  v.  Krejnick,  172. 
Weiland  v.  Krejnick,  24. 
Weiland  v.  Sunwall,  24. 
Weir  Plough  Co.  v.  Porter,  3. 
Weise   v.   St.  Louis,   etc.  Railway 

Co.  528. 
Weisshaar  Adm'x  etc.  v.  Kimball 

Steamship  Co.  634,  637. 
Welch  V.  Boston  R.  Co.  509. 
Welch  V.  Pac.  etc.  Ry.  Co.  599. 
Welch  V.  Ware,  713. 
Wells  v.  Oregon,  etc.  R.  Co.  562. 
Wells  V.  Railway  Co.  667,  670. 
Wells  V.  Steam  Navigation  Co.  349. 
Wells  V.  Thomas,  544. 
Welles  V.  Thornton,  62. 
Wells  et  al  v.  Wells,  307. 
Wentworth  v.  Day,  70. 
Wentworth  v.  McDuffie,  79. 
Wertheimer,     etc.     Co.     v.     Hotel 

Stevens  Co.  381. 
Wescott  v.  Fargo,  509. 
Wessenger  v.  Taylor,  354. 
West  v.  Bank  of  Rutland,  312. 
West  V.  Crary,  273. 
West  Chester,  etc.  Co.  v.  Miles,  612, 

613. 
Westchester    &    Phila.    R.    Co.    v. 

McElwee,  574. 
West  Chicago,  etc.  Co.  v.  McNulty, 

637,  657. 
Western  Maryland  R.  Co.  v.  Stock- 
dale,  640. 
Western    Railway    Co.    v.    Cotton 

Mills,  423. 
Western,  etc.  R.  Co.  v.  Exposition 

Cotton  Mills,  510. 


Western  R.  Co.  v.  Wagner,  255. 
Western  Stone  Co.  v.  Whalam,  626. 
Western   Transfer   Co.   v.   Barber, 

196. 
Western     Transportation     Co.     v. 

Hoyt,  544. 
Western    Trans.    Co.    v.    Newhall, 

482,  520. 
Western  Union  R.  Co.  v.  Wagner, 

174,  221. 
Wheeling,  etc.  R.  Co.  v.  Coots,  590. 
Wheeler  v.  Grand    Trunk    R.    Co. 

659. 
Wheeler    v.    Newbould,    302,    303, 

313. 
Wheeler  v.  San  Francisco,  etc.  R. 

Co.  609. 
Wheeled    &    Wilson,    etc.    Co.    v. 

Brookfield,  211. 
Whelen's      Ex'r.      v.      Kingsley's 

Adm'r.  280. 
Whipple  v.  Thayer,  254. 
Whitaker    v.     Sumner,     173,     240, 

277a,    286,    296. 
White  V.  Bascom,  399. 
White  V.  Fitchburg  R.  Co.  123. 
White   V.    Madison,    177. 
White  V.  St.  Louis,  etc.  Co.  685. 
White   V.    Steam   Tug   Mary   Ann, 

414. 
White  V.  Webb,  540. 
White  V.  Winnisimet  Co.  416. 
White    Mountains,    etc.    R.    Co.    v. 

Bay  State  Iron  Co.  286,  326. 
Whitehead    v.    St.   Louis,    etc.    Co. 

602. 
White's  Bank  v.  Myles,  233. 
Whitefield  v.  La  Dispencer,  390. 
Whitney  v.   First  National   Bank, 

34. 
Whitney  v.  Lee,  39. 
Whitney  v.  New  York,  etc.  R.  Co. 

600. 
Whitney  v.  Peay,  286. 
Whitney  v.  Pullman  Car  Co.  647. 
Whitney  v.  Tibbetts,  240. 
Whitwell    V.    Brigham,    296,    297, 

313. 
Whitewell  v.  Wells,  70. 


Ixxii 


TABLE  OF  CASES. 


[References  are  to  sections.] 


Wicher  v.  Boston,  etc.  Co.  647. 
Wilcox  V.  Fair  Haven  Bank,  236. 
Wilcox    Sewing    Machine    Co.    v. 

Himes,  139. 
Wilder  v.  Johnsburg  &  L.  C.  Ry. 

Co.   454. 
AViggins  v.  King,  640. 
Wilkes  et  al.  v.  Ferris,  278. 
Wilkins  v.  Earle,  360. 
Wilkinson   v.   Jeffreys,    317. 
Willard  V.  Bridge,  174. 
Willett  V.  Rich,  200,  204. 
Willey   V.   Allegheny   City,    202. 
Williams  v.  Allsup,  160. 
Williams  v.  City,  etc.  730. 
Williams  v.  Gillespie,  238. 
Williams  v.   Little,   243. 
Williams  v.   Moore,  362. 
Williams    v.    Oregon    Short    Line, 

670. 
Willis    V.    Grand    Trunk    Railway 

Co.  509. 
Willis  V.  Traction  Co.  730. 
Willits   V.    Hatch,    292. 
Willoughby    v.    Horridge,    416. 
Wilmington     &     W.     Ry.     Co.     v. 

Kitchin,    558. 
Wilsey  v.  Railway  Co.  643. 
Wilson  V.  Atlanta,  etc.  R.  Co.  430, 

431. 
Wilson  V.  Britt,  39. 
Wilson  V.  Elliott,  571. 
Wilson  V.  Gaysun,  70. 
Wilson  V.  Halpin,  372. 
Wilson  V.   Hamilton,  479. 
Wilson  V.  Jones,  177. 
Wilson  V.  Little,  224,  246. 
Wilson  V.  Martin,  64,  159. 
Wilson    V.    Missouri    Pac.    R.    Co. 

504. 
Wilson  V.  Railway  Co.  679. 
Wilt  V.  Welsch,  14. 
Wiltse  V.  Barnes,  571. 
Wing  V.  N.  Y.  &  E.  R.  Co.  457. 
Wing  V.  Sleeping-car  Co.  647. 
Winslow  V.  Railway  Co.  563. 
Winter  v.  Coit,  560. 
Winteringham   v.   Hayes,   34,   204. 


Wintermute  v.  Clark,  334. 
Wintermute  v.  Taylor,  332. 
Winthrop  Savs.  Bank  v.  Jackson, 

292,  300. 
Wise  V.  Covington,  etc.  Street  Car 

Co.  638. 
Witbeck  v.  Holland,  565,  574. 
Witbeck  v.  Schuyler,  438. 
Witham  v.  Lee,   199. 
Witzler  v.  Collins,  439,  462. 
Wolcott  v.  Keith,  238. 
Wolf    V.    American    Express    Co. 

471. 
Wood   V.    McClure,   34,    108. 
Wood  V.  Mathews,  318. 
Wood   V.   Pearson,   70. 
Wood  V.  Railway  Co.  611,  615. 
Wood  V.  Remick,  37. 
Wood  V.  Yeatman,  221. 
Woodman  v.  Hubbard,  125. 
Woodman   v.    Notingham,    57. 
Woodroffe  v.  Roxborough,  etc.  R. 

Co.  657. 
Woodruff  V.  Painter,  34,  119. 
Woodruff      Sleeping-car      Co.      v. 

Diehl,  333,  647. 
Woods  V.  Metropolitan,  etc.  R.  Co. 

640. 
Woodward  v.   Seamans,   172. 
Woodward  v.  Stein,  123. 
Woolsey    v.    Chicago,    etc.    R.    Co. 

602. 
Wooster  v.  Tarr,  545. 
Worcester  Nat.  Bank  v.  Cheeney, 

243. 
Worcester  Co.  Bank  v.  Dorchester 

&  Milton  Bank,  244. 
Worthington  v.   Tormey,   322, 
Wright  V.  Bates,  252. 
Wright  V.  Caldwell,  432. 
Wright  V.  Ross,  279. 
Wright  V.  Sherman,  161,  163. 
Wycoff  V.  Southern  Hotel  Co.  380. 
Wyckoff    V.    Southern    Hotel    Co. 

383. 
Wyckoff  V.   Queens   County  Ferry 

Co.  416. 
Wynne  v.  Railway  Co.  730. 


TABLE  OP  CASES. 


Ixxiii 


[References  are  to  sections.] 


Y. 


Yearsely  v.  Gray,  161. 
Yeatman  v.   Savings  Inst.  285, 
Yenni   v.   McNamee,   173. 
Yeomans  v.  Navigation  Co.  597. 
Yockey  v.  Smith,  24. 
York  Co.  V.  Cent.  R.  R.   Co.  435, 

513,   522. 
York  V.  Grindstone,  338. 
York  R.  Co.  v.  111.  Cent.  R.  Co.  513, 

555. 
Yorke  v.  Grenaugh,  555. 
Yorton  v.  Milwaukee,  etc.  R.  Co. 

640. 
Yorton  v.  Railway  Co.  651. 
Young  v.  Can.  Pac.  R.  Co.  437. 


Young  V.  Kimball,  161,  375,  539. 
Young  V.  Mahling,  14. 
Young  V.  N.  Y.  etc.  R.  Co.  605. 
Young  V.  Noble,  33. 
Young  V.  Penn.  R.  Co.  644. 
Young  V.  Upson,  237a. 

z. 

Zell  V.  Dunkle,  133. 
Zimmer  v.  Fox,  etc.  Co.  637. 
Zimmer  v.  New  York,  etc.  R.  Co. 

509. 
Zimpleton  v.  Veeder.  318. 
Zinn  V.  Steamboat  Co.  570,  574. 
Zone  V.  Hannah,  177. 
Zouch  V.  Railroad  Co.  513. 


PART  FIEST 


ORDINARY   BAILMENTS 


CHAPTER  I. 


THE  RELATION. 


§  1.  Origin   and    growth   of   the 
bailment  relation. 

2.  Interpretation    of    the    Eng- 

lish courts. 

3.  Definitions  and  criticisms  of 

definitions. 

4.  Some    very    common    exam- 

ples of  bailments. 

5.  Purpose     of     the     bailment 

may  necessitate  a  change 
in  condition. 

6.  A  further  exception  as 

to  redelivery. 

7.  Grain  stored  in  elevat- 
ors. 

8.  Flouring  mills. 

9.  The  Roman  mutuum. 

10.  The  parties  to  a  bailment. 

11.  Who  may  be  a  bailor  or  a 

bailee. 

12.  Competency  of  parties. 

13.  These    disabilities    a    shield 

but  not  a  sword. 


§  14.  The  theory  of  the  disability 
of  an  infant  bailee, 

15.  An  agent  may  create  the  re- 

lation. 

16.  Corporations. 

17.  The   kind   of   property   that 

may    be    the    subject    of 
bailment. 

18.  Delivery  and  acceptance. 

19.  A  summary  of  some  essen- 

tials. 
Title  of  the  bailor. 
Bailor  may  sell  or  incumber 

property — Title  of  bailee. 
Bailor    must    exercise    good 

faith — Must     not     expose 

bailee  to  danger. 

23.  Bailment  or  sale, 

24.  Commingling  of   grain 

on  storage. 

25.  A  bailment,  a  sale,  or  a  gift 

— How  determined. 


20. 
21. 


22. 


§  1.  Origin  and  growth  of  the  bailment  relation. — Bail- 
ments and  the  bailment  relation  have  existed  since  rights  and 
obligations  pertaining  to  personal  property  have  had  recogni- 
tion in  the  law.  For  a  long  period  of  time  in  its  earlier  de- 
velopment the  law  of  bailments  was  little  understood  or  writ- 
ten upon,  nor  did  it  appear  in  the  decisions  of  the  courts ;  and 
later  when  referred  to  was  often  erroneously  classified;  and 
so  knowledge  of  its  application  was  slow  and  its  adoption  by 
the  courts  deferred.    The  Eomans  knew  of  it  and  wrote  about 


ORDINARY   BAILMENTS. 


[§  2. 


it.  Their  knowledge  of  the  subject  is  evidenced  by  their  an- 
alysis which  is  recognized  to  this  day  and  quite  generally 
adopted.  Sir  William  Jones  in  that  very  learned  and  master- 
ful essay  on  the  Law  of  Bailments  given  to  the  world  in  1781, 
which  was  among  the  first  well-formulated  productions  on  the 
subject,  discussed  the  law  of  the  Romans  and  their  writers 
to  some  extent,  and  logically  elucidated  the  doctrines  already 
announced  by  Coke,  Bracton  and  Holt  in  the  English  courts.^ 
§  2.  Interpretation  in  the  English  courts. — Coke  and  Brac- 
ton and  other  earlier  writers  on  the  English  law  gave  the 
subject  more  or  less  prominence;  but  in  some  of  the  early 
cases  the  English  judges  found  great  difficulty  in  applying  the 
law,  especially  in  cases  of  gratuitous  bailments,  because   as 


1  Sir  William  Jones  in  his  Es- 
says on  Bailments  (pages  16  and 
18),  in  giving  a  summary  of  the 
Roman  law  on  the  subject,  says: 
"Two  great  sources  whence  all  the 
decisions  of  the  civilians  on  this 
subject  must  be  derived  are  two 
laws  of  Ulpian,  the  first  of  which 
is  taken  from  his  work  on  8al>- 
inus  and  the  second  from  his  tract 
on  the  Edict."  At  page  25  of  his 
essay  he  further  says:  "Now  in 
order  to  ascertain  the  degree  of 
negligence  for  which  a  man  who 
has  in  his  possession  the  goods  of 
another  is  made  responsible  by 
his  contract  either  express  or  im- 
plied civilians  established  three 
principles  which  they  deduced 
from  the  law  of  Ulpian  on  the 
Edict;  .  .  .  First,  in  contracts 
which  are  beneficial  solely  to  the 
owner  of  the  property  holden  by 
another;  no  more  is  demanded  of 
the  holder  than  good  faith,  and  he 
is  consequently  responsible  for 
nothing  less  than  gross  neglect. 
.  .  .  Secondly,  in  contracts  re- 
ciprocally beneficial  to  both  par- 
ties as  in  those  of  sale,  hiring, 
pledging,  partnership  and  con- 
tract implied  in  joint  property, 
such  care  is  exacted  as  every  pru- 


dent man  commonly  takes  of  his 
own  goods;  and  by  consequence 
the  vendor  or  hirer  or  taker  in 
pledge  or  partner  and  the  co-pro- 
prietor are  answerable  for  ordi- 
nary neglect.  Thirdly,  in  con- 
tracts from  which  a  benefit  ac- 
crues only  to  him  who  has  the 
goods  in  his  custody  as  in  that  of 
lending  for  use,  an  extraordinary 
degree  of  care  is  demanded;  and 
the  borrower  is  therefore  re- 
sponsible for  slight  negligence." 
At  page  36  he  further  says:  "This 
had  been  the  leaning  generally 
and  almost  unanimously  received 
and  thought  by  the  doctors  of  Ro- 
man law;  and  it  is  very  remark- 
able that  even  Antoine  Favre  or 
Faber  who  was  famed  for  innova- 
tion and  paradox,  who  published 
two  ample  volumes  'De  Erroribus 
Interpretum,'  and  whom  Grafina 
justly  classes  the  boldest  of  ex- 
positors and  the  keenest  adver- 
sary of  the  practicers,  discovered 
no  error  in  the  common  interpre- 
tation of  two  celebrated  laws 
which  have  so  direct  and  so  pow- 
erful an  influence  over  social  life 
and  which  he  must  have  repeat- 
edly considered. 


§    2.]  THE  RELATION.  3 

they  argued  there  was  no  consideration  to  support  such  a  eon- 
tract.  In  the  case  of  Riches  v.  Brigges^  the  court  arrived  at 
the  correct  conclusion,  holding  that  the  delivery  of  the  prop- 
erty was  a  sufficient  consideration  to  support  the  action;  but 
upon  error  this  doctrine  was  reversed;  afterwards  however, 
in  Game  v.  Harvie  ^  the  court  was  unanimous  in  holding  that 
the  reversal  in  Riches  v.  Brigges  was  wrong.  And  so  the  courts 
continually  wavered  and  changed  their  opinions,  and  the  law 
remained  in  a  very  unsettled  state ;  nor  was  it  well  understood 
or  applied  until  there  came  that  exhaustive  and  excellent  opin- 
ion of  Lord  Holt  in  1710,  the  celebrated  case  of  Coggs  v.  Ber- 
nard *  where  for  all  time  the  difficulties  that  had  before  then 
arisen,  were  settled  and  this  case  became  not  only  a  leading 
case  upon  the  law  of  bailments,  but  substantially  the  founda- 
tion and  conclusion  upon  which  this  relation  was  to  be  sup- 
ported in  its  application.  While  the  learned  judge  in  this  case 
followed  in  a  general  way  the  doctrine  that  had  been  announced 
by  the  Romans,  he  more  fully  elucidated  the  doctrine,  met  all 
the  objections  and  criticisms  that  had  impeded  a  clear  under- 
standing and  adoption  of  it,  and  it  may  be  said  that  in  this 
opinion  he  announced  the  doctrine  of  the  law  of  bailments  for 
all  time.® 

2  Yelverton,   4   S.   C.   Cro.   Eliz.      the  declaration  is  insufficient,  be- 
883.  cause    the    defendant    is    neither 

3  Yelverton,  50.  laid  to  be  a  common  porter,  nor 
*  2  Lord  Raym.  912.  that  he  is  to  have  any  reward  for 
5  In  this  case  Lord  Holt  gives      his  labor.     So  that  the  defendant 

that  complete  and  valuable  analy-  is  not  chargeable  by  his  trade, 
sis  which  has  been  ever  since  and  a  private  person  cannot  be 
adopted  by  both  writers  and  charged  in  an  action  without  a  re- 
judges.  He  said  in  part:  "The  ward.  I  have  had  a  great  con- 
case  is  shortly  this:  This  defend-  sideration  of  this  caseHand  be- 
ant  undertakes  to  remove  goods  cause  some  of  the  books  make  the 
from  one  cellar  to  another,  and  action  lie  upon  the  reward,  and 
there  lay  them  down  safely,  and  some  upon  the  promise,  at  first  I 
he  managed  them  so  negligently,  made  a  great  question,  whether 
that  for  want  of  care  in  him,  this  declaration  was  good.  But 
some  of  the  goods  were  spoiled.  upon  consideration,  as  this  decla- 
Upon  not  guilty  pleaded,  there  has  ration  is,  I  think  the  action  will 
been  a  verdict  for  the  plaintiff,  well  lie.  In  order  to  show  the 
and  that  upon  full  evidence,  the  grounds,  upon  which  a  man  shall 
cause  being  tried  before  me  at  be  charged  with  goods  put  into 
Guildhall.  There  has  been  a  mo-  his  custody,  I  must  show  the  sev- 
tion  in   arrest  of  judgment,   that  eral  sorts  of  bailments.    And  (b) 


ORDINARY  BAILMENTS. 


[§   3. 


§  3.  Definitions  and  criticisms  of  definitions. — The  word 
"bailment"  is  derived  from  the  French  word  "bailler,"  to  de- 
liver. In  its  legal  sense,  however,  it  has  a  much  broader  mean- 
ing and  as  we  shall  see  involves  several  important  elements. 


there  are  six  sorts  of  bailments. 
Tlie  first  sort  of  bailment  is  a 
bare  naked  bailment  of  goods,  de- 
livered by  one  man  to  another  to 
keep  for  the  use  of  the  bailor  and 
this  I  call  a  depositum,  and  it  is 
that  sort  of  bailment  which  is 
mentioned  in  Southcote's  Case. 
The  second  sort  is  when  goods  or 
chattels  that  are  useful  are  lent 
to  a  friend  gratis  to  be  used  by 
him;  and  this  is  called  commoda- 
turn,  because  the  thing  is  to  be  re- 
stored in  specie.  The  third  sort 
is  when  goods  are  left  with  the 
bailee  to  be  used  by  him  for  hire; 
this  is  called  locatio  et  conductio, 
and  the  lender  is  called  locator, 
and  the  borrower  conductor.  The 
fourth  sort  is,  when  goods  or  chat- 
tels are  delivered  to  another  as  a 
pawn,  to  be  a  security  to  him  for 
money  borrowed  of  him  by  the 
bailor;  and  this  is  called  in  Latin, 
vadium  and  in  English  a  pawn  or 
a  pledge.  The  fifth  sort  is  when 
goods  or  chattels  are  delivered  to 
be  carried,  or  something  is  to  be 
done  about  them  for  a  reward  to 
be  paid  by  the  person  who  deliv- 
ers them  to  the  bailee,  who  is  to 
do  the  thing  about  them.  The 
sixth  sort  is  when  there  is  a  de- 
livery of  goods  or  chattels  to 
somebody,  who  is  to  carry  them, 
or  do  something  about  them  gra- 
tis, without  any  reward  for  such 
his  work  or  carriage,  which  is  this 
present  case.  I  mention  these 
things,  not  so  much  that  they  are 
all  of  them  so  necessary  in  order 
to  maintain  the  proposition  which 
is  to  be  proved,  as  to  clear  the 
reason  of  the  obligation,  which  is 


upon  persons  in  cases  of  trust. 
As  to  the  (a)  first  sort,  where  a 
man  takes  goods  in  his  custody  to 
keep  for  the  use  of  the  bailor,  I 
shall  consider,  for  what  things 
such  a  bailee  is  answerable.  He 
is  not  answerable,  if  they  are  stole 
without  any  fault  in  him,  neither 
will  a  common  neglect  make  him 
chargeable,  but  he  must  be  guilty 
of  some  gross  neglect.  There  is,  I 
confess,  a  great  authority  against 
me,  where  it  is  held,  that  a  gen- 
eral delivery  will  charge  the  bailee 
to  answer  for  the  goods  if  they 
are  stolen,  unless  the  goods  are 
specially  accepted,  to  keep  them 
only  as  you  will  keep  your  own. 
But  (b)  my  lord  Coke  has  im- 
proved the  case  in  his  report  of 
it,  for  he  will  have  it,  that  there 
is  no  difference  between  a  special 
acceptance  to  keep  safely,  and 
an  acceptance  generally  to  keep. 
But  there  is  no  reason  nor  justice 
in  such  a  case  of  a  general  bail- 
ment, and  where  the  bailee  is  not 
to  have  any  reward,  but  keeps  the 
goods  merely  for  the  use  of  the 
bailor,  to  charge  him  without 
some  default  in  him.  For  if  he 
keeps  the  goods  in  such  a  case 
with  an  ordinary  care,  he  has  per- 
formed the  trust  reposed  in  him. 
But  according  to  this  doctrine 
the  bailee  must  answer  for  the 
wrongs  of  other  people,  which  he 
is  not,  nor  cannot  be,  sufficiently 
armed  against.  If  the  law  be  so, 
there  must  be  some  just  and  hon- 
est reason  for  it,  or  else  some 
universal  settled  rule  of  law,  upon 
which  it  is  grounded;  and  there- 
fore  it   is   incuFiibent   upon    them 


§  3.] 


THE   RELATION. 


Generally  it  may  be  defined  to  be  the  delivery  of  the  possession 
of  a  thing  in  trust  for  a  particular  object  or  purpose  expressed 
or  understood  and  upon  a  contract  express  or  implied  to  con- 
form to  that  object  or  purpose. 


that  advance  this  doctrine,  to 
show  an  undisturbed  rule  and 
practice  of  the  law  according  to 
this  position.  But  to  show  that 
the  tenor  of  the  law  was  always 
otherwise,  I  shall  give  a  history 
of  the  authorities  in  the  books  in 
this  matter,  and  by  them  show 
that  there  never  was  any  such 
resolution  given  before  South- 
cote's  Case."  ...  As  to  the  sec- 
ond sort  of  bailment,  viz.:  commo- 
datum  or  lending  gratis,  the  bor- 
rower is  bound  to  the  strictest 
care  and  diligence,  to  keep  the 
goods,  so  as  to  restore  them  back 
again  to  the  lender,  because  the 
bailee  has  a  benefit  by  the  use  of 
them,  so  as  if  the  bailee  be 
guilty  of  the  least  neglect,  he  will 
be  answerable.  ...  As  to  the 
third  sort  of  bailments,  scilicet  To- 
catio  or  lending  for  hire,  in  this 
case  the  bailee  is  also  bound  to 
take  the  utmost  care  and  to  return 
the  goods,  when  the  time  of  the 
hiring  is  expired.  .  .  .  As  to 
the  fourth  sort  of  bailment,  viz.: 
vadium  or  a  pawn,  in  this  I  shall 
consider  two  things,  first,  what 
property  the  pawnee  has  in  the 
pawn  or  pledge,  and  secondly,  for 
what  neglects  he  shall  make  sat- 
isfaction. As  to  the  first,  he  has 
a  special  property,  for  (c)  the 
pawn  is  a  securing  to  the  pawnee, 
that  he  shall  be  repaid  his  debt, 
and  to  compel  the  pawner  to  pay 
him.  But  if  the  pawn  be  such  as 
it  will  be  the  worse  for  using,  the 
(a)  pawnee  cannot  use  it,  as 
clothes,  etc.,  but  if  it  be  such,  as 
will  be  never  the  worse,  as  if  jew- 


els for  the  purpose  were  pawned 
to  a  lady,  she  (b)  might  use  them. 
But  then  she  must  do  it  at  her 
peril,  for  whereas,  if  she  keeps 
them  locked  up  in  her  cabinet,  if 
her  cabinet  should  be  broke 
open,  and  the  jewels  taken  from 
thence,  she  would  be  excused;  if 
she  wears  them  abroad,  and  is 
there  robbed  of  them,  she  will  be 
answerable.  And  the  reason  is,  be- 
cause the  pawn  is  in  the  nature  of 
a  deposit,  and  as  such  is  not  lia- 
ble to  be  used.  But  if  the  pawn 
be  of  such  a  nature,  as  the 
pawnee  is  at  any  charge  about  the 
thing  pawned,  to  maintain  it,  as 
a  horse,  cow,  etc.,  then  (c)  the 
pawnee  may  use  the  horse  in  a 
reasonable  manner,  or  milk  the 
cow,  etc.,  in  recompense  for  the 
meat.  As  to  the  second  point 
Bracton  99  B.  gives  you  the  au- 
swer.  ...  In  effect,  if  a  cred- 
itor takes  a  pawn,  he  is  bound  to 
restore  it  upon  the  payment  of  the 
debt,  but  yet  it  is  sufficient  if  the 
pawnee  use  true  diligence,  and  he 
will  be  indemnified  in  so  doing, 
and  notwithstanding  the  loss,  yet 
he  shall  resort  to  the  pawnor  for 
his  debt.  ...  As  to  the  fifth 
sort  of  bailment,  viz.:  a  delivery 
to  carry  or  otherwise  manage,  for 
a  reward  to  be  paid  to  the  bailee, 
those  cases  are  of  two  sorts; 
either  a  delivery  to  one  that  ex- 
ercises a  public  employment,  or  a 
delivery  to  a  private  person.  First 
if  it  be  to  a  person  of  the  first 
sort,  and  he  is  to  have  a  reward, 
he  is  bound  to  answer  for  the 
goods  at  all  events.     And  this  is 


ORDINARY  BAILMENTS. 


[§  3. 


Ordinarily  it  is  understood  that  when  the  object  or  purpose 
of  the  bailment  is  accomplished  the  property  bailed  must  be 
redelivered  to  the  bailor.  This  is  always  required,  except  when 
to  carry  it  out  the  object  and  intention  of  the  parties  would 


the  case  of  the  common  carrier, 
common  hoyman,  master  of  a  ship. 
.  .  .  The  law  charges  this  per- 
son thus  entrusted  to  carry  goods, 
against  all  events  but  acts  of  God, 
and  of  the  enemies  of  the  king. 
For  though  the  force  be  never  so 
great,  as  if  an  irrestible  multi- 
tude of  people  should  rob  him, 
nevertheless  he  is  chargeable. 
And  this  is  a  politic  establishment, 
contrived  by  the  policy  of  the 
law,  for  safety  of  all  persons,  the 
necessity  of  whose  affairs  oblige 
them  to  trust  these  sorts  of  per- 
sons, that  they  may  be  safe  in 
their  ways  of  dealing;  for  else 
these  carriers  might  have  an  op- 
portunity of  undoing  all  persons 
that  had  any  dealings  with  them, 
by  combining  with  thieves,  etc., 
and  yet  doing  it  in  such  a  clandes- 
tine manner,  as  would  not  be  pos- 
sible to  be  discovered.  And  this 
is  the  reason  the  law  is  founded 
upon  in  that  point.  The  second 
sort  are  bailees,  factors  and  such 
like.  And  though  a  bailie  is  to 
have  a  reward  for  his  manage- 
ment, yet  he  is  only  to  do  the  best 
he  can.  And  if  he  be  robbed,  etc., 
it  is  a  good  account.  And  the  rea- 
son of  his  being  a  servant  is  not 
the  thing;  for  he  is  at  a  distance 
from  his  master,  and  acts  at  dis- 
cretion, receiving  rents  and  sell- 
ing corn,  etc.  And  yet  if  he  re- 
ceives his  master's  money  and 
keeps  it  locked  up  with  a  reason- 
able care,  he  shall  not  be  answer- 
able for  it,  though  it  be  stolen. 
But  yet  this  servant  is  not  a  do- 
mestic servant,  nor  under  his  mas- 


ter's immediate  care.  But  the  true 
reason  of  the  case  is,  it  would  be 
unreasonable  to  charge  him  with 
a  trust,  farther  than  the  nature  of 
the  thing  puts  it  in  his  power  to 
perform  it.  But  it  is  allowed  in 
the  other  cases,  by  reason  of  the 
necessity  of  the  thing.  The  same 
law  of  a  factor. 

As  to  the  sixth  sort  of  bailment, 
it  is  to  be  taken,  that  the  bailee 
is  to  have  no  reward  for  his  pains, 
but  yet  that  by  his  ill  manage- 
ment the  goods  are  spoiled.  Sec- 
ondly, it  is  to  be  understood,  that 
there  was  a  neglect  in  the  man- 
agement. But  thirdly,  if  it  had 
appeared  that  the  mischief  hap- 
pened by  any  person  that  met  the 
cart  in  the  way,  the  bailee  had  not 
been  chargeable.  As  if  a  drunken 
man  had  come  by  in  the  streets, 
and  had  pierced  the  cask  of 
brandy;  in  this  case  the  defend- 
ant had  not  been  answerable  for 
it;  because  he  was  to  have  noth- 
ing for  his  pains.  Then  the  bailee 
having  undertaken  to  manage  the 
goods,  and  having  managed  them 
ill,  and  so  by  his  neglect  a  dam- 
age has  happened  to  the  bailor, 
which  is  the  case  in  question,  what 
will  you  call  this?  In  Bracton  Lib. 
3,  100,  it  is  called  mandatum.  It 
is  an  obligation,  which  arises  ex 
mandato.  It  is  what  we  call  in 
English  an  acting  by  commission. 
And  if  a  man  acts  by  commission 
for  another  gratis,  and  in  execut- 
ing his  commission  behaves  him- 
self negligently,  he  is  answerable. 
But  secondly  it  is  ob- 
jected, that  there  is  no  considera- 


§    3.]  THE  RELATION.  7 

indicate  a  different  undertaking.  It  was  this  that  occasioned 
much  discussion  among  the  authors.  Sir  William  Jones  de- 
fined a  bailment  to  be  a  delivery  of  goods  on  a  contract  ex- 
pressed or  implied  that  they  shall  be  restored  to  the  bailor  ac- 
cording to  his  directions  as  soon  as  the  purpose  for  which  they 
were  bailed  shall  be  answered.®  This  definition  and  all  others 
involving  the  element  of  redelivery  in  specie  was  criticised  by 
Judge  Story  for  the  reason  as  he  says  "  In  a  bailment  for  sale,  as 
in  the  case  of  a  consignment  to  a  factor,  no  redelivery  is  contem-, 
plated  between  the  parties.  In  some  cases  no  use  is  contemplated 
by  the  bailee;  in  others  it  is  of  the  essence  of  the  contract;  in 
some  cases  time  is  material  to  terminate  the  contract,  in  others 
time  is  necessary  to  give  a  new  accessorial  right."  Chancellor 
Kent  expressed  a  doubt  whether  a  consignment  of  goods  to  a  fac- 
tor constitutes  a  bailment.  He  defines  a  bailment  to  be  "  a  deliv- 
ery of  goods  in  trust  upon  a  contract  expressed  or  implied  that 
the  trust  shall  be  duly  executed  and  the  goods  restored  by  the 
bailee  as  soon  as  the  purpose  of  the  bailment  shall  be  an- 
swered," and  takes  occasion  to  criticise  Judge  Story's  defini- 
tion and  criticism,  and  contends  that  a  factor  is  not  a  bailee, 
and  that  to  apply  the  word  "bailment"  to  cases  in  which  no 
delivery  or  redelivery  to  the  owner  or  his  agent  is  contem- 
plated, "is  extending  the  definition  of  the  term  beyond  the 
ordinary  acceptation  of  it  in  the  English  law.'^ 

But  it  may  be  said  after  a  half  century  or  more  of  discussion 

tion  to  ground  this  promise  upon,  a  man  will  do  that,  and  miscarries 

and  therefore  the  undertaking  is  in  the  performance  of  his  trust,  an 

but  nudum  pactum.     But  to  this  action    will    lie    against    him    for 

I  answer,  that  the  owner's  trust-  that,  though  no  body  could  have 

Ing  him  with  the  goods  is  a  suffi-  compelled  him  to  do  the  thing." 
cient  consideration  to  oblige  him  «  Jones,  Essay  on  Bailments,  1. 

to  a  careful  management.    Indeed,  A     delivery     of     personalty     for 

if  the  agreement  had  been  execu-  some  particular  purpose  under  con- 

tory,  to  carry  these  brandies  from  tract  that  after  the  purpose  has 

the  one  place  to  the  other  such  a  been    accomplished    the    property 

day,   the    (a)    defendant   had   not  should   be   returned,   construed   a 

been  bound  to  carry  them.     But  bailment.    Bates  v.  Bigby,  123  Ga. 

this    is    a    different    case,    for    as-  727,  51  S.  E.  717;   Smelting  Co.  v. 

sumpsit  does   not  only  signify  a  Schultz  &  Clary,  67  Kan.  605,  73 

future   agreement,   but   in   such   a  Pac.  903. 

case  as  this  it  signifies  an  actual  ^  Story    on    Bailm.,    sec.    2    and 

entry  upon  the  thing,  and  taking  note  2;   Kent's  Comm.  40,  note  1; 

the   trust  upon   himself.     And   if  Story  on  Bailments,  sec.  2. 


8  ORDINARY  BAILMENTS.  [§    5. 

by  eminent  jurists  it  is  now  the  settled  doctrine  and  by  the 
great  weight  of  authority  that  the  contention  of  Judge  Story 
was  correct ;  that  a  factor  is  a  bailee.^ 

Judge  Story,  in  defining  a  "bailment,"  says:  "Without  pro- 
fessing to  enter  into  a  minute  criticism  it  may  be  said  that  a 
bailment  is  a  delivery  of  a  thing  in  trust  for  some  special  ob- 
ject or  purpose  and  upon  a  contract  expressed  or  implied  to 
conform  to  the  object  or  purpose  of  the  trust."  ® 

§  4.  Some  very  common  examples  of  bailments. — A.  leaves 
his  overcoat  with  you  in  your  ofiice  while  he  goes  out  into  the 
city  to  transact  some  business.  A  mere  accommodation  on  your 
part.    You  are  the  bailee  of  A.  's  overcoat,  A.  the  bailor. 

A.,  a  guest  at  a  hotel,  leaves  his  overcoat  with  the  clerk  or 
porter,  and  receives  a  check  for  it,  according  to  the  usage  of 
the  hotel.  A.  is  the  bailor,  and  the  proprietor  of  the  hotel  is 
the  bailee. 

A.  leaves  his  overcoat  with  his  tailor  to  be  repaired.  A.  is 
the  bailor,  and  the  tailor  is  the  bailee ;  or,  A.  leaves  cloth  with 
the  tailor,  from  which  the  tailor  is  to  make  him  a  suit  of  clothes. 

A.  loans  his  overcoat,  without  any  reward,  to  B.,  to  be  worn 
and  used  by  B. 

A.  deposits  money  with  his  banker. 

A.  leaves  a  box  of  valuable  papers  in  a  safety-deposit  com- 
pany's vault,  in  charge  of  the  company. 

A.  consigns  goods  to  be  carried  and  delivered  by  a  common 
carrier,  an  express  company  or  a  railroad  company;  and  so 
thousands  of  examples  might  be  given. 

§  5.  Purpose  of  the  bailment  may  necessitate  a  change  i'n 
condition. — It  often  happens  that  the  very  purpose  of  the  bail- 
ment indicates  that  the  property  is  to  be  changed  and  is  not 
to  be  redelivered  in  its  original  condition;  as,  for  example, 
where  wheat  is  delivered  to  the  miller  to  be  manufactured  into 
flour;  or  cloth  is  furnished  to  the  tailor  to  be  made  into  cloth- 
ing; or  material  to  the  wagon-maker  with  which  he  is  to  con- 

«  South  Bend  Iron  Works  v.  Cot-  W.  Va.  158,  22  L.  R.  A.  850,  18  S. 

trell,  31  Fed.  Rep.  254;    Mack  v.  E.  482;   Furst  Bros.  v.  Bank,  117 

Story,    57    Conn.    407;    Walker    v.  Ga.  472,  43  S.  E.  728;   Johnson  v. 

Butterick,    105    Mass.    238;    Weir  Allen,   70  Conn.  738,   744,   10  Atl. 

Plough  Co.  V.  Porter,  82  Mo.  23;  1056;    Strum  v.  Boker,  150  U.   S. 

Mlddleton  v.  Stone,  111  Pa.  589;  312-326. 
Barnes,  etc.  Co.  v.  Block  Bros.,  38  9  Story  on  Bailments,  sec,  2. 


§    8.]  THE   RELATION.  9 

struct  a  wagon;  in  such  like  cases  it  goes  without  saying  that 
the  manufactured  article  is  to  be  delivered  to  the  bailor  rather 
than  the  specific  property  bailed." 

§  6.  A  further  exception  as  to  redelivery. — ^Another  ex- 
ception to  the  general  rule  that  the  subject  of  the  bailment 
must  be  finally  returned  to  the  bailor  is  found  in  those  cases 
where,  from  the  very  nature  of  the  business  and  the  usage  of 
trade,  it  is  understood  that  property  of  like  specie  and  value 
may  be  returned  when  the  object  of  the  bailment  has  been  ac- 
complished; as,  for  example,  where  money  is  deposited  in  a 
bank,  or  is  loaned  to  a  borrower,  it  is  not  expected  in  such  cases 
that  the  very  same  money — the  specific  bank  notes — will  be 
returned  to  the  depositor  or  the  loaner,  but  on  the  other  hand 
it  is  expected  that  the  money  will  be  used  and  that  other  money 
of  the  same  value  and  amount  will  be  delivered  to  the  depositor 
or  the  loaner  in  payment.  Usage,  custom  and  public  policy 
often  fix  and  determine  the  law  in  such  cases. 

§  7.  Grain  stored  i'n  elevators. — Another   exception  to 

the  general  rule  requiring  the  subject  of  the  bailment  to  be  re- 
turned to  the  bailor  when  the  object  of  the  bailment  is  accom- 
plished is  where  grain  is  stored  in  elevators.  This  business, 
which  has  grown  to  immense  proportions  in  this  country,  has 
of  necessity  wrought  an  exception  to  the  general  rule.  Thou- 
sands of  bushels  of  grain  are  stored  for  safe-keeping  for  hun- 
dreds of  different  owners;  it  would  be  impossible,  at  least 
impracticable,  to  keep  each  depositor's  grain  separate  from  the 
others  so  as  to  return  the  identical  deposit;  and  it  is  not  ex- 
pected ;  the  only  separation  of  the  grain  is  by  keeping  the  same 
kind  and  quality  in  bins  by  itself,  so  the  owner  may  have  re- 
turned to  him  grain  of  the  same  kind  and  quality  as  that  he 
deposited. 

§  8.  Flouring-mills. — Another  exception  which  is  recog- 
nized is  in  the  case  of  storing  grain  with  the  owner  of  flouring 
or  grist-mills,  where  the  grain  is  kept  separate  only  by  putting 
like  kind  and  quality  together,  as  in  the  case  of  the  elevator; 
the  understanding  being  that  the  owners  shall  not  receive  their 
identical  grain  from  the  mill  proprietor,  but  grain  of  like  qual- 

10  Where  it  appears  by  the  con-  sell   it  for  the  person  who  deliv- 

tract  that   it   is    the   intention   of  ered  it  to  him,  the  transaction  is 

the  parties  that  the  title  shall  not  a    bailment.      Harris    v.    Coe,    71 

pass,  but  that  the   receiver  shall  Conn.  157,  41  Atl.  552. 


10  ORDINARY  BAILMENTS.  [§    9, 

ity  and  quantity,  or  flour,  or  the  mill  product  of  such  grain, 
as  the  owner  may  desire  from  time  to  time. 

Some  important  questions  have  arisen  in  the  courts  as  to  the 
status  of  the  parties  in  this  kind  of  bailments.  Are  they  bail- 
ments or  sales?  In  ease  of  loss  who  is  the  owner?  who  the 
loser? 

§  9.  The  Roman  mutumn. — These  exceptions  to  the  general 
rule  above  noticed  resemble  to  some  extent  the  "Roman  mu- 
tuum,"  which,  at  common  law,  was  considered  to  be  a  sale 
of  the  property. 

An  exposition  of  this  is  given  by  Gaius  as  follows:  "This," 
he  says,  "chiefly  relates  to  things  which  are  estimated  by 
weight,  number  or  measure,  such  as  money,  oil,  wine,  corn, 
bronze,  silver  and  gold.  We  transfer  our  property  in  these  on 
condition  that  the  receiver  shall  transfer  back  to  us  at  a  future 
time  not  the  same  things  but  other  things  of  the  same  nature, 
wherefore  this  contract  is  called  mutuum  because  thereby  meum 
becomes  tuem.  This  transaction  is  more  in  the  nature  of  a  loan, 
where  it  is  intended  to  part  with  the  title  to  the  thing  loaned, 
than  a  bailment.  As  was  said  by  Judge  Story:  "In  a  mutuum 
the  property  passes  immediately  from  the  mutuant,  or  lender, 
to  the  mutuary  or  borrower."  ^^  The  parties  are  in  the  rela- 
tion of  lender  and  borrower,  and  the  property  of  a  nature  that 
can  be  at  once  appropriated  by  the  borrower;  not  the  loaning 
of  property,  in  the  sense  that  the  parties  expect  the  identical 
thing  will  be  returned,  but  rather  the  loaning  of  a  thing  that 
is  to  be  paid  for  in  money  or  in  kind,  and  so  in  that  respect  is 
somewhat  in  the  nature  of  a  sale ;  as  where  a  merchant  borrows 
of  his  merchant  neighbor  certain  goods  to  be  sold  in  his  store, 

11  Story  on  Bailments,  sec.  47.  and  are  to  be  restored  only  in 
Sir  William  Jones  in  his  essay  on  equal  value  or  quantity;  this  lat- 
Bailments,  page  64,  in  defining  ter  contract  which  according  to 
a  mutum  and  distinguishin;j;  it  St.  German  is  most  properly 
from  the  "third  sort"  of  bailments,  called  a  loan,  does  not  belong  to 
says:  "  I  call  it  after  the  French  the  present  subject;  but  it  may  be 
lawyer  'loan  for  use"  to  distinguish  right  to  remark  that  the  specific 
it  from  their  loan  for  consump-  things  are  not  to  be  returned;  the 
tion  or  the  mutuum  of  the  Ro-  absolute  property  of  them  is  trans- 
mans,  by  which  is  understood  the  ferred  to  the  borrower,  who  must 
lending  of  money,  wine,  corn  and  bear  the  loss  of  them  if  they  be 
other  things,  that  may  be  valued  destroyed  by  wreck,  pillage,  fire 
by    number,    weight   or    measure,  or  other  inevitable  misfortune." 


§    11.]  THE   RELATION.  11 

with  the  understanding  that  they  are  to  be  returned  in  kind 
or  be  paid  for  in  money,  the  title  of  the  goods  passes  to  the 
borrower,  and  therefore  is  not  a  bailment.^^ 

§  10.  The  parties  to  a  bailment. — The  parties  to  a  transac- 
tion called  or  defined  to  be  a  bailment  are  (a)  the  bailor,  and 
(&)  the  bailee,  (a)  The  bailor  is  the  party  or  person  who,  hav- 
ing the  property  in  his  possession,  ''delivers  it  in  trust  for 
some  special  object  or  purpose,  and  upon  a  contract  expressed 
or  implied  to  conform  to  the  object  or  purpose  of  the  trust." 
(6)  The  bailee  is  the  party  or  person  who  accepts  the  property 
and  the  trust,  and  continues  in  the  possession  of  the  same  until 
the  objects  or  purposes  of  the  trust  are  carried  out,  or  the  bail- 
ment is  terminated. 

§  11.  Who  may  be  bailor  or  bailee. — One  who  is  the  owner 
of  personal  property  and  entitled  to  the  possession  of  it,  or  one 
who  has  simply  the  possession  of  such  property  may  become  a 
bailor  of  it.  He  need  not  be  the  owner  of  the  property  nor 
need  his  possession  be  a  lawful  possession.  This  is  a  relation 
arising  upon  and  involving  the  possession  of  personal  prop- 
erty. One  capable  of  entering  into  a  contract  is  competent  to 
become  a  bailee,  but  this  is  not  a  requisite  in  all  cases,  for  the 
relation  is  created  in  some  instances  by  delivery  of  the  prop- 
erty to  persons  not  competent  to  make  a  contract ;  as  to  an  in- 
fant or  a  married  woman.  The  inability  of  the  bailee  to  make 
a  contract  only  affects  his  liability  in  case  of  loss  or  injury  to 
the  subject  of  the  bailment.    A  person  may  become  bailee  with- 

12  In  Caldwell  v.  Hall,  60  Miss.  volved.     In  the  one  case  it  is  a 

330,  45  Am.  Rep.  410,  in  discussing  sale,   with   the   right   in   the   pur- 

this  subject,  the  court  say:    "The  chaser  to   return  the  thing  deliv- 

irregular  and  anamolous  character  ered    or    its    equivalent    in    kind, 

of  bailments,  well  defined  and  rec-  though  not  in  specie.   On  the  other 

ognized  in  the  Roman  continental  it   is   a   deposit    of    money    with 

law,  is  alluded  to  rather  than  dis-  the  understanding  that  it  is  to  be 

tinctly  announced  by  the  common-  surrendered  on  demand,  but  with 

law  writers.    In  our  system  of  ju-  the   right  in  the   receiver  to  use 

risprudence  it  is  treated  as  a  sale  and  replace  it  for  the  desire.   .   .   . 

rather  than  a  bailment,  and  this  It  follows,   therefore,   that  in  the 

seems    to    be    its    proper    aspect,  common  law  the  idea  of  bailment 

since  its  practical  effect  must  al-  in  this   class  of  cases  is   lost  in 

ways  be  to  operate  a  transfer  of  that    of    a    purchase,    where    the 

title  where  chattels  are  deposited,  thing  deposited  is  a  chattel,  and  in 

and  to  create  the  relation  of  lender  that  of  debtor  and  creditor  where 

and  borrower  whose  money  is  in-  it  is  money." 


12  ORDINARY  BAILMENTS.  [§    13. 

out  his  voluntary  act  as  where  the  possession  of  the  property- 
comes  to  him  unsought  or  unconsented  to,  as  for  example,  prop- 
erty coming  to  his  possession  or  control  by  finding,  by  being 
left  upon  his  premises,  or  received  from  one  unlawfully  depriv- 
ing the  owner  of  it. 

It  would  be  difficult  to  mention  all  who  may  assume  this  re- 
lation as  parties.  Innumerable  examples  might  be  given,  for, 
as  a  general  rule,  whenever  the  personal  property  of  one  comes 
into  the  possession  of  another  by  reason  of  any  right  or  privi- 
lege short  of  a  gift  or  sale,  actual  or  conditional,  the  relation  of 
bailor  and  bailee  is  created.  Factors,  agents,  commission  mer- 
chants, trustees,  warehousemen  in  the  pursuit  of  their  ordinary 
business,  are  all  more  or  less  subject  to  the  law  of  bailments; 
nor  is  it  confined  to  natural  persons ;  corporations  may  become 
parties  to  a  bailment  either  as  bailor  or  bailee.  The  bailment 
relation  is  as  wide  as  the  pursuit  of  business  and  the  parties 
to  the  relation  as  numerous  as  those  who  are  engaged  in  it. 

§  12.  Competency  of  parties. — As  to  the  competency  of  par- 
ties to  a  bailment,  it  is  a  general  rule  that  one  who  is  compe- 
tent to  make  a  contract  is  competent  to  become  a  party  to  a 
bailment.  Such  a  degree  of  competency,  however,  is  not  al- 
ways required  to  create  the  bailment  relation,  for  while  that 
relation  is  a  contract  relation,  there  are  cases  where  it  will  be 
held  to  exist  between  parties  who  are  not  competent  to  make 
a  contract,  as,  for  example,  where  the  property  of  one  comes 
into  the  possession  of  another  by  finding,  the  owner  being  an 
infant,  a  lunatic  or  one  not  legally  competent  to  make  a  con- 
tract, the  bailment  relation  would  be  held  to  exist  and  the 
possessor  of  the  property  would  be  held  liable  for  the  care  and 
custody  of  it  as  a  bailee  and  could  not  avoid  his  liability  on 
the  ground  that  the  bailor  was  incompetent  to  enter  into  a  con- 
tract in  relation  to  such  property.  The  relation  would  not  be 
void  but  voidable.  And  so  one  incompetent  to  make  a  contract 
may  become  a  bailee,  and  be  liable  as  such. 

§  13.  These  disabilities  a  shield  but  not  a  sword. — While 
an  infant  or  married  woman  at  common  law  would  be  whollj' 
incompetent  to  become  a  party  to  a  contract,  and  would  be 
able  to  avoid  a  contract  of  bailment  if  property  should  be  bailed 
to,  or  received  by  them  as  bailee,  nevertheless,  if  property 
comes  into  the  possession  of  persons  thus  incapacitated,  the  law 
will  require  of  them  proper  care  to  the  extent,  at  least,  that 


§    14.]  TUE   BELATION.  13 

they  do  not  destroy,  injure  or  misappropriate  it.  In  case  of 
misappropriation  the  law  does  not  proceed  upon  the  contract, 
but  holds  them  liable  as  for  a  conversion  of  the  property  in  an 
action  of  tort.  And  when  an  infant  hires  a  horse  and  carriage 
to  drive  to  a  certain  place,  and  without  authority  tortiously 
drives  beyond  that  place,  resulting  in  the  death  of  the  horse, 
he  would  be  held  to  have  converted  the  property. 

§  14.  The  theory  of  the  liability  of  an  infant  bailee. — To  hold 
an  infant  liable  upon  contract  other  than  for  necessaries  would 
be  an  innovation  not  to  be  thought  of  and  generally  the  courts 
have  limited  the  liability  of  infants  for  other  than  necessaries 
to  acts  of  trespass  or  acts  that  are  purely  tortious  and  not  con- 
nected with  contract.^^  But  infants  have  been,  and  reasonably 
should  be,  held  liable  for  fraud,  deceit,  falsehood  and  tortious 
acts  while  performing  or  acting  under  a  contract,  when  they 
do  not  form  a  constituent  part  of  the  contract.  If  the  damage 
complained  of  arises  from  breach  of  contract  simply,  even  if 
there  has  been  fraud  or  false  representations  as  to  the  subject 
of  it  an  action  cannot  be  sustained  upon  the  contract  for  a 
breach  of  it.  Nor  could  an  action  purely  upon  a  contract  be 
changed  to  a  tort,  simply  to  deprive  an  infant  of  his  plea  of 
infancy.  But  where  the  wrong  is  more  than  the  mere  breach 
of  the  contract  and  is  tortious  in  itself  even  though  it  be  con- 
nected with  a  contract,  the  infant  is  liable  in  an  action  for  the 
wrong  and  his  infancy  will  be  no  defense. 

This  principle  applied  to  bailments  has  often  been  invoked. 
The  distinction  observed  by  the  courts  in  these  cases  is  this: 
If  the  injury  resulted  at  a  time  when  the  infant  was  acting 
within  the  terms  of  the  contract,  and  was  the  result  of  his  lack 
of  skill  or  experience  in  carrying  it  out  and  not  attributable 
to  a  wrongful  intent,  he  would  not  be  liable,  for  in  such  case 
the  action  would  necessarily  arise  upon  the  breach  of  the  con- 
tract.^* But  where  there  has  been  a  distinct  departure  from 
the  object  of  the  bailment  and  the  infant  bailee  has  been  guilty 
of  a  positive  wrong  amounting  to  a  willful  tort,  he  is  liable  and 
his  infancy  is  no  defense.    As  was  said  in  Towne  v.  Wiley :  ^^ 

13  Slayton   v.    Barry,    175    Mass.  149,  30  Atl.  350;  Eaton  v.  Hill,  50 
513,  56  N.  E.  574,  49  L.  R.  A.  560;  N.  H.  235,  9  Am.  Rep.  189;  Young 
Penrose  v.  Curran,  3  Rawle  (Pa.),  v.  Mahling,  63  N.  Y.  Supp.  181. 
351.  15  23  Vt.  355,  56  Am.  Rep.  85. 

14  Stack  V.  Cavanaugh,  67  N.  H. 


14  ORDINARY   BAILMENTS,  [§    16. 

"So  long  as  the  infant  keeps  within  the  terms  of  the  bailment 
his  infancy  protects  him,  but  when  he  departs  from  the  object 
of  the  bailment  it  amounts  to  a  conversion  of  the  property  and 
he  is  liable  as  much  as  if  he  had  taken  the  property  in  the  first 
instance  without  permission,  and  this  the  courts  say  is  no  hard- 
ship for  the  infant  as  well  knows  that  he  is  perpetrating  a 
positve  and  substantial  wrong,  when  he  hires  the  object  of  the 
bailment  for  one  purpose  and  puts  it  to  another,  as  he  does 
when  he  takes  another's  property  by  way  of  trespass."  ^^ 

§  15.  An  agent  may  create  the  relation. — Acting  within  the 
scope  of  his  authority,  an  agent  may  create  the  relation  for 
his  principal,  and  within  the  apparent  scope  of  his  authority 
can  no  doubt  bind  his  principal  as  to  third  parties,  even  though 
he  has  no  actual  authority.  It  has  been  held,  and  is  no  doubt 
the  law,  that  the  agent  may  render  himself  liable  if  he  know- 
ingly exceeds  his  authority  in  this  the  same  as  he  might  in 
other  matters.  The  doctrine  of  ratification  of  the  agent's  act 
applies  in  this  as  it  does  in  other  business  transactions.  Bailors 
and  bailees  may  act  and  be  bound  by  their  agents,  and  the  gen- 
eral doctrines  applicable  to  the  law  of  agency  apply  here  as 
in  other  eases.  Where  the  agent,  however,  acts  tortiously  and 
Avholly  beyond  and  without  authority,  he  cannot  bind  his  prin- 
cipal, but  renders  himself  liable.^" 

§  16.  Corporations. — A  corporation  acting  within  its  corpo- 
rate authoritj^  may  become  either  a  bailor  or  a  bailee.  Cor- 
porations, from  their  very  nature,  necessarily  must  act  through 
their  agents  or  officers;  but  where  the  agents  and  officers  act 
ultra  vires  they  become  personally  liable,  and  do  not  bind  the 

16  Freeman  v.  Rowland,  14  R.  I.  held  would  render  him  liable  for 

39,  51  Am.  Rep.  340.    In  Stack  v.  the  damage,  although  it  was  a  part 

Cayanaugh,  67  N.  H.  149,  30  Atl.  of     the     contract     that     property 

350,   it   was   held   that  if  the   in-  should  be  safely  returned.     Green 

jury   resulted    from    the    want    of  v.  Sperry,  14  Vt.  390,  42  Am.  Dec. 

skill   or   inexperience    in    driving,  519;    Churchill  v.  White,  58  Neb. 

the  bailor  could  not  recover  against  22,  78  N.  W.  369.    Contrary  to  this 

the  bailee.    In  Eaton  v.  Hill,  50  N.  view   and   against  the   weight  of 

H.  235,  9  Am.  Rep.  189,  the  action  authority  are  Schenk  v.  Strong,  4 

was  on  the  case  for  careless  and  N.  J.  L.  87;   Penrose  v.  Curran,  3 

immoderate    driving    the    plea    of  Rawle  (Pa.),  351,  24  Am.  Dec.  356; 

infancy     was     sustained     on     the  Wilt  v.  Welsch,  6  Watts  (Pa.)  9. 
ground    that    defendant    had    not  i"  Foster    v.     Essex     Bank,     17 

been  guilty  of  a  positive  and  will-  Mass.   479. 
ful   tortious   act  which   the   court 


§    18.]  THE   RELATION.  15 

corporation.  If,  however,  the  property  is  received  by  the  cor- 
poration by  reason  of  the  unauthorized  acts  of  its  agents  or 
officers  or  by  reason  of  acts  ultra  vires,  it  cannot  retain  the 
propery,  but  is  bound  to  redeliver  it  to  the  bailor.^* 

On  the  other  hand,  should  the  corporation,  through  its  proper 
officers  receive  and  continue  in  the  possession  of  the  property, 
it  would  be  held  to  the  duties  and  liabilities  of  bailee  in  the 
particular  case. 

§  17.  The  kind  of  property  that  may  be  the  subject  of  a  bail- 
ment.— Personal  property  only  can  be  the  subject  of  a  bailment : 
the  property,  however,  may  be  incorporeal  personalty,  as  stocks, 
bonds,  and  the  like,  as  well  as  corporeal  personalty,  but  real 
estate  cannot  be  the  subject  of  a  bailment. 

If  A.  rents  a  house,  or  a  farm,  or  a  storehouse  of  B.,  which  is 
given  into  his  possession  under  their  contract  or  lease,  the  re- 
lation of  landlord  and  tenant  is  created,  not  that  of  bailor  and 
bailee.  If,  however,  A.  should  take  the  household  furniture  of 
B.  for  storage,  either  for  hire  or  without  compensation,  the 
relation  of  bailor  and  bailee  would  be  created.  The  usual  test 
is,  the  property  must  be  personal  property,  and  of  such  a  nature 
that  it  can  be  delivered  into  the  actual  manual  possession  of 
the  bailee  by  the  bailor,  and,  after  the  object  of  the  bailment 
has  been  accomplished,  redelivered  to  the  bailor,  if  such  was 
the  intention  of  the  parties. 

§  18.  Delivery  and  acceptance. — The  property,  the  subject  of 
the  bailment  must  come  to  the  possession  of  the  bailee,  and 
to  that  end  there  must  be  some  sort  of  delivery,  either  actual 
or  constructive.  The  very  essence  of  the  relation  is  possession. 
and  so  it  may  be  said,  as  a  general  rule,  that  there  must  be  an 
acceptance  of  the  property  on  the  part  of  the  bailee ;  for  one 
cannot  be  made  a  bailee  against  his  will,  and  must  have  knowl- 
edge of  the  fact  that  he  is  in  possession  of  the  property. 

While  it  is  said  that  a  bailment  is  a  contract,  and  generally 
it  is  so  conceded  to  be,  it  is  not  always  so  created;  one  may 
come  to  the  possession  of  the  property  by  finding,  or  even  by 
stealing  it,  or  it  may  be  placed  in  his  possession  by  mistake 
and  not  found  by  him  until  some  time  after;  in  all  these 
cases  the  bailor  had  no  intention  of  parting  with  the  posses- 
sion; there  was  no  mutuality  or  meeting  of  minds  upon  that 
subject,  but  nevertheless  the  finder  or  the  thief  becomes  a 

i«  Duncomb  v.  N.  Y.  etc.,  R.  Co.,  S4  N.  Y.  190. 


16  ORDINARY  BAILMENTS.  [§    19. 

bailee;  he  may  not  be  bound  to  continue  the  relation,  but  so 
long  as  he  retains  the  possession  he  must  care  for  the  property, 
and  for  that  care,  according  to  the  circumstances  governing  the 
case,  he  is  liable  to  the  owner  or  bailor.  An  example  used  by 
many  of  the  authors  on  this  subject  is  where  one,  by  mistake, 
puts  his  purchased  articles  into  another's  wagon  in  the  street, 
and  the  owner,  without  any  knowledge  of  their  presence,  drives 
away  with  them.  So  long  as  he  is  ignorant  of  having  them 
in  his  possession  he  is  under  no  obligation  to  care  for  them; 
he  may  lose  them  by  the  grossest  of  carelessness  upon  his  part, 
and  he  is  not  liable  because  he  is  not  in  any  sense  a  bailee ;  but 
the  moment  he  discovers  the  parcels,  and  has  knowledge  of 
the  fact  that  he  has  them  in  his  possession,  from  that  moment 
he  becomes  a  bailee,  and  is  legally  bound  to  care  for  them, 
and  if  lost,  under  certain  circumstances  would  be  liable  to  the 
owner. 

§  19.  A  summary  of  some  essentials. — If  the  usual  and  ordi- 
nary essentials  of  a  bailment  were  grouped  together  in  one 
section  they  could  no  doubt  be  better  understood.  Following 
our  definition  they  may  be  said  to  be:  First.  The  parties  to  a 
bailment.  Generally  parties  to  a  bailment  relation  must  be 
persons  competent  to  make  a  contract,  but  as  we  have  seen  the 
circumstances  of  obtaining  control  of  the  property  may  con- 
stitute persons  parties  to  a  bailment  relation  who  are  not  com- 
petent to  make  a  contract. 

Second.  The  delivery  of  the  possession  of  the  thing.  There 
must  be  an  actual  delivery  of  the  property  constituting  the  sub- 
ject of  the  bailment.  A  manual  delivery,  if  possible,  but,  if  be- 
cause of  the  nature  of  the  property  it  cannot  be  so  delivered, 
then  the  best  delivery  it  is  susceptible  of.  The  delivery  must 
be  such  in  every  case  as  will  give  the  bailee  absolute  and  com- 
plete control  of  the  possession  of  the  property  bailed.  A  con- 
trol, as  we  shall  see,  that  cannot,  during  the  existence  of  the  re- 
lation, be  interfered  with  even  by  the  owner  to  the  exclusion  of 
the  bailee  except  where  the  bailment  is  a  gratuitous  bailment 
and  for  the  sole  benefit  of  the  bailee.  It  is  this  that  character- 
izes the  relation  and  distinguishes  it  from  a  gift  or  a  sale. 

Third.  The  delivery  is  in  trust  and  the  purpose  and  object 
of  the  bailment  declares  and  fixes  the  trust.  It  may  be  a  deliv- 
ery of  property  for  use  or  for  custody  and  care,  or  upon  which 
labor  or  skill  is  to  be  performed  and  in  its  changed  or  improved 


§    20.]  THE   REliATION.  17 

condition  redelivered  to  the  bailor,  or  it  may  be  a  delivery  of 
property  to  a  factor  to  be  sold  in  the  market;  whatever  the  ob- 
ject or  purpose  of  the  bailment,  it  defines  and  fixes  the  duty  and 
liability  of  the  bailee. 

Fourth.  The  particular  object  or  purpose  of  the  bailment 
must  be  expressed  or  understood  by  the  parties  and  the  bail- 
ment must  be  a  lawful  one  and  one  for  which  the  thing  deliv- 
ered is  fit.  The  bailor,  as  we  shall  see,  must  exercise  good 
faith  in  this  particular,  having  regard  not  only  to  the  fitness  of 
the  thing  for  the  purpose  for  which  it  is  bailed,  but  to  safety  in 
using  it  for  that  purpose. 

Fifth.  A  contract  expressed  or  implied  to  conform  to  the  ob- 
ject or  purpose  of  the  bailment. 

The  definiteness  of  the  contract  in  this  respect  is  an  import- 
ant essential  in  constituting  a  bailment  relation.  What  is  to  be 
the  use  of  the  property  and  what  disposition  is  to  be  made  of 
it  at  the  conclusion  of  the  relation?  Is  it  to  be  redelivered  to 
the  bailor  or  by  some  process  of  manufacturing  changed  in  its 
nature  and  the  changed  product  redelivered,  or  is  it  to  be  sold 
in  the  market.  It  is  this  essential  part  that  has  much  to  do 
with  fixing  the  duties  and  liability  of  the  bailee.  For  if  he  has 
failed  to  conform  to  the  object  of  the  bailment  he  becomes  lia- 
ble for  its  conversion  and  an  action  for  the  value  of  the  prop- 
erty can  be  sustained  by  the  bailor.^^ 

§  20.  Title  of  the  bailor. — Absolute  title  or  ownership  of  the 
property  by  the  bailor  is  not  essential.  The  bailment  relation 
is  founded  upon  a  possessory  right,  and  so  one  who  has  a  spe- 
cial property  merely  in  the  subject  of  the  bailment,  as  the  right 
to  the  possession  and  use  of  the  thing,  may  bail  the  property. 
The  finder  of  property  has  the  right  to  the  possession  of  it 
against  all  the  world  except  the  owner  of  it,  and  so  may  be 
the  bailor  of  the  property.  Even  a  thief  may  make  a  bail- 
ment of  the  stolen  property,  and,  if  the  owner  does  not  inter- 
fere, may  recover  it  from  the  bailee,  if  at  the  termination  of  the 
bailment  he  should  refuse  to  redeliver  it  to  him.  It  is  well  set- 
tled that  a  bailee  cannot  dispute  his  bailor's  title;  having  re- 
ceived the  property  bailed  from  the  bailor,  he  cannot,  while 
holding  it  as  a  bailee,  deliver  it  to  another  person.    In  Bursley 

19  Hall   V.   Corcoran,   107   Mass.251,  9  Am.  30. 
2 


18  ORDINARY  BAILMENTS.  [§    23. 

V.  Hamilton  *"  it  was  held  that  an  owner  of  property,  giving  a 
receipt  for  it  to  an  officer  who  has  seized  it  under  process,  could 
not  set  up  title  in  himself,  when  sued  by  the  officer,  without 
first  restoring  the  property  to  the  officer. 

§  21.  Bailor  may  sell  or  incumber  property — Title  of  bailee. 
— The  bailee  has  a  title  only  commensurate  with  the  object  of 
the  bailment ;  a  right  to  the  possession  and  use  of  the  property, 
fixed  by,  and  coextensive  with,  the  contract  of  bailment;  he 
cannot  sell  or  in  any  way  incumber  the  property,  for  should  he 
attempt  to  do  so  he  would  violate  the  very  essence  and  right 
to  continue  the  bailment.  But  the  bailor  may,  subject  to  the 
bailee's  rights  to  carry  out  the  bailment,  sell  all  his  right,  title 
and  interest  in  the  property  or  thing  bailed,  or  he  may  mort- 
gage it,  or  in  any  way  incumber  it,  and,  upon  notice,  the  bailee 
would  be  bound  to  respect  the  rights  of  the  vendee  or  mort- 
gagee. 

§  22.  Bailor  must  exercise  good  faith — ^Must  not  expose 
bailee  to  dang^er. — It  is  the  duty  of  the  bailor  to  exercise  good 
faith  toward  the  bailee  by  giving  him  notice  of  all  the  faults 
of  the  thing  bailed,  within  his  knowledge,  that  might  result  in 
exposing  the  bailee  to  danger,  and  if  he  fails  to  do  so,  and  by 
reason  of  it  the  bailee  is  injured,  the  bailor  will  be  liable.  As, 
for  example,  if  the  bailor  should  loan  a  vicious  horse,  it  is  his 
duty  to  notify  the  bailee  of  the  fact,  and  if  by  reason  of  the 
bailor's  failing  to  give  such  notice  the  bailee  should  be  injured, 
he  may  recover  damages  of  the  bailor. 

§  23.  Bailment  or  sale. — ^Both  a  bailment  and  a  sale  are  the 
result  of  contract  between  the  parties ;  to  accomplish  either  the 
minds  of  the  parties  must  meet.  It  would  therefore  follow  that, 
to  determine  whether  the  personal  transaction  is  a  bailment  or 
a  sale,  it  is  necessary  to  discover  the  intention  of  the  parties, 
for  their  intention  must  govern. 

There  is  no  fixed  rule  or  settled  form  of  words  by  which  it 
can  always  be  determined  whether  the  transaction  is  a  bailment 
or  a  sale,  and  it  is  often  difficult  to  conclude  from  the  facts  what 
was  really  intended  by  the  parties.    If  the  identical  property 

20  15  Pick.  (Mass.)  40;  Knight  V.  Patterson,   47  111.  App.   87;    Har- 

Davis   Carriage   Ck).,   18   C.   C.  A.  rington   v.   King,   121   Mass.   269; 

278,  71  Fed.   662.     May  maintain  Rode  v.  Lee,  102  Cal.  583,  36  Pac 

trespass  or  trover.    Hollenbeck  v.  936. 
Todd.  19  111.  App.  452;  McGraw  v. 


§    23.]  THE  RELATION.  19 

is  to  be  returned,  or  the  same  property  in  a  changed  condition, 
or  the  natural  product  of  the  same  property,  the  transaction  is 
a  bailment. 

But  where  by  the  contract  or  undertaking  the  title  passes  or 
t'here  is  a  delivery  of  the  property  and  no  obligation  to  return 
it  either  in  specie  or  the  product  of  it,  but  the  receiver  may  ap- 
propriate it  and  return  in  payment  therefor  some  other  thing  of 
the  same  kind,  or  pay  for  it  in  money,  it  is  a  purchase  and  not 
a  bailment.  The  test  seems  to  be,  does  the  title  to  the  property 
pass  to  the  person  receiving  it,  if  it  does  it  is  a  sale ;  if  it  does 
not,  but  the  same  property  in  specie  or  the  product  of  it,  as 
where  the  flour  from  the  wheat  delivered  to  the  miller,  or  the 
clothing  manufactured  from  the  cloth  delivered  to  the  manufac- 
turer, is  to  be  redelivered  to  the  bailor,  it  is  a  bailment. 

In  Lyon  v.  Lennon  ^^  wheat  was  delivered  to  the  defendant 
who  gave  the  following  receipt:  "Received  of  Harry  Lyon,  53 
bushels,  50  pounds  of  wheat.  Not  transferable  without  notice. ' ' 
The  testimony  given  in  explanation  of  the  receipt  and  the 
transaction  disclosed  that  the  defendant  was  in  the  habit  of 
receiving  wheat  at  his  elevator  and  giving  receipts  therefor,  on 
presentation  of  which  it  was  understood  he  would  pay  the  then 
market  price  for  the  same.  The  court  held  the  transaction  a  sale. 
Where  grain  is  received  by  a  dealer  under  a  contract,  either 
express  or  implied,  to  pay  the  person  delivering  it  the  market 
price  whenever  he  chooses  to  demand  it,  and  such  grain  is 
mixed  with  other  of  like  quality  in  bins  from  which  shipments 
are  being  made  daily,  there  being  no  understanding  that  the 
owner  shall  have  the  right  to  demand  either  his  own  or  a  like 
quality  of  other  grain  in  return,  the  dealer  becomes  the  owner 
of  the  grain  and  is  liable  to  pay  for  it  whenever  called  upon. 
In  such  a  case  the  contract  from  the  beginning  furnishes  the 
criterion  by  which  the  price  is  to  be  fixed,  and  it  is  not  invalid.^- 

21 106  Ind.  567.  son  v.  Brown,  44  la.  455,  the  court 

22  In  doubtful  cases  the  inten-  held  that  a  contract  acknowledg- 

tion  of  the  parties  must  determine.  ing  the  receipt  of  grain  for  stor- 

Edward's  Appeal,  105  Pa.  St.  103;  age,    "loss   by   fire   and   the   ele- 

Eulow  V.  Klein,   79   Pa.   St.   488;  ments  at  the  owner's  risk,"  with 

Mack  V.  Snell,  140  N.  Y.  193;  Nor-  the  option  of  the  party  receipting 

wegian  Plow  Co.  v.  Clark,  102  la.  it  to  return  grain  of  equal  test  and 

31,  70  N.  W.  808;   McConnele  v.  value,   constitutes   a   contract   df 

Hughes,  29  Wis.  537;  Richardson  bailment  which  is  converted  Into 

V.  Olmstead,  74  111.  213.     In  Nel-  a  sale   whenever  the  bailee   dis- 


20  ORDINARY  BAILMENTS.  [§    24. 

§  24.  Commingling  of  grain  on  storage. — These  con- 
tracts more  often  arise  in  the  business  of  warehousemen  or  ele- 
vator companies,  or  where  grain  is  stored  with  mill  owners, 
where  the  grain  delivered  is  mingled  with  other  grain  of  the 
same  grade  and  kind  in  one  common  mass  and  not  kept  sepa- 
rate for  each  owner.  In  such  case  it  is  held,  if  the  commingled 
mass  has  been  delivered  on  simple  storage,  each  party  is  en- 
titled on  demand  to  receive  his  share;  if  for  conversion  into 
flour,  each  is  entitled  to  his  proper  share  of  the  product.^^ 

And  where  a  milling  firm  received  a  quantity  of  wheat  and 
gave  receipts  therefor,  stating  that  it  had  been  received  at  the 
owner's  risk  from  farmers  and  at  a  certain  rate  when  sold  to 
them,  but  no  charge  was  made  for  storage,  and  the  millers  used 
the  wheat  in  their  business,  and  it  became  a  part  of  their  cur- 
rent consumable  stock  and  its  identity  was  lost,  it  was  held 
that  in  the  absence  of  legal  usage,  or  a  course  of  dealing  be- 
tween the  parties  to  the  contract,  the  receipt  should  be  con- 
strued as  evidence  of  a  bailment  and  not  of  a  sale.^*  But  where 
grain  is  delivered  to  a  warehouseman  who  is  also  a  miller,  with 
the  understanding  that  it  is  to  be  mixed  with  the  miller's  own 
wheat  and  ground  into  flour  in  the  usual  course  of  his  business, 
and  the  flour  made  therefrom  is  to  be  his  own  property,  such  a 
transaction  is  a  sale.^^  Where  the  warehouseman  was  author- 
poses  of  the  grain.  Cases  holding  of  each  were  kept  separate.  Chase 
bailment  not  a  sale:  Strum  v.  v.  Washburn,  1  Ohio  St.  244,  50 
Baker,  150  U.  S.  312;  Hunt  v.  Wy-  Am.  Dec.  630;  Andrews  v.  Rich- 
man,  100  Mass.  198;  Collins  v.  Bel-  mond,  34  Hun  (N.  Y.),  20;  James 
fonte  Centr.  R.,  171  Pa.  St.  243;  v.  Plank,  48  Ohio  St.  255. 
Union  Stock  Yards  Co.  v.  Western  24  Ledyard  v.  Hibbard,  48  Mich. 

Land,  etc.,  Co.,  59  Fed.  49;    Sun      421,  42  Am.  Rep.  474. 
Printing,   etc.,  Co.  v.   Moore,   183  25  The  mere  fact  that  grain  de- 

U.  S.  642.  Cases  holding  sale  not  livered  on  a  contract  of  bailment 
a  bailment:  Peoria  Mfg.  Co.  v.  is  mixed  with  other  grain,  with 
Lyons,  153  111.  427;  Herford  v.  the  knowledge  of  the  bailor,  does 
Davis,  102  U.  S,  235;  Smith  v.  Es-  not  convert  the  transaction  into  a 
tate  of  Smith,  91  Mich.  7.  sale;   in  such  case  the  bailee  of 

23  Where  grain  is  delivered  on  a  the  whole  has  no  greater  control 
contract  of  bailment,  the  mere  of  the  mass  than  if  the  share  of 
fact  that  it  was  mixed  with  other  such  were  kept  separate.  Bretz  v. 
grain  with  the  knowledge  of  the  Diehl,  117  Pa.  St.  589,  2  Am.  St. 
bailor  does  not  convert  the  trans-  Rep.  706.  A  delivery  of  wheat  to 
action  into  a  sale,  and  the  bailee  an  elevator  for  which  the  owner 
of  the  whole  has  no  greater  con-  takes  a  receipt  signed  by  the  ele- 
trol  of  the  mass  than  if  the  share      vator  company  stating  that  it  had 


§    24,]  THE  RELATION.  21 

ized  to  sell  only  his  own  portion  of  the  common  mass,  and  was 
required  to  keep  at  all  times  an  amount  on  hand  to  satisfy  all  de- 
positors, it  was  held  that  the  transaction  was  a  bailment.^® 

Plaintiffs  delivered  grain  to  defendant  at  his  elevator  and  re- 
ceived from  him  a  memorandum  that  it  was  "bought  at  owner's 
risk  as  to  fire,"  but  specifying  no  price,  the  grain  being  placed 
by  himself  in  a  separate  bin.  Subsequently  the  defendant  made 
an  offer  for  it  which  the  plaintiffs  refused,  and  afterwards  the 
elevator  and  grain  were  destroyed  by  fire  without  defendant's 
fault.  It  was  the  custom  to  receive  grain  in  this  manner,  and 
afterwards  to  buy  or  return  it.  It  was  held  that  the  defendant 
was  not  liable  for  the  loss.^^ 

And  where  a  contract  by  which  several  farmers  were  to  de- 
liver to  a  designated  firm,  at  a  factory  previously  owned  and 
controlled  by  the  farmers,  specified  vegetable  products  at  des- 
ignated prices,  which  the  firm  agreed  to  take  and  pay  for  at 
certain  times,  and  if  necesary  make  additions  to  the  factory 
at  a  cost  not  to  exceed  a  specified  amount,  to  be  deducted  from 
the  net  profits,  each  farmer  to  receive  a  specified  per  cent,  pro 
rata  according  to  the  amount  of  produce  delivered  by  him  at 
the  factory  in  addition  to  the  price  agreed  upon,  it  was  held 
that  the  contract  was  one  of  bailment  and  not  of  sale.-^ 

And  a  delivery  of  wheat  to  an  elevator  company  for  which 
the  owner,  after  stating  that  he  did  not  wish  to  sell,  took  a  re- 
ceipt stating  the  number  of  bushels  delivered,  was  held  to  con- 
stitute a  bailment  and  not  a  sale  of  the  wheat,  notwithstanding 
a  custom  in  the  neighborhood  to  regard  such  transactions  as 
sales,  unless  the  custom  was  known  to  the  owner  of  the  wheat 
and  he  understood  that  he  was  dealing  in  accordance  there- 
with.29 

"bought    a    certain    quantity    of  State   v.    Washburn,    1   Ohio    St. 

wheat   of   him,"    but   which   had  244). 

stamped  on  it  the  words:  "Stored  27  irons  v.  Kentner,  51  Iowa,  88, 
not    transferable,"    constitutes    a  33  Am.  Rep.  119;   State  v.  Stock- 
bailment  of  the  wheat  so  deliv-  man,  30  Oreg.  36,  46  Pac.  851. 
ered.      Weiland    v.    Sunwall,    63  28  Satles  v.   Hallock,    44    N.    Y. 
Minn.  320,  65  N.  W.  628;  Weiland  Supp.  543. 

V.  Krejnick,  63  Minn.  314,  65  N.  29  Weiland  v.  Krejnick,  63  Minn. 

W.  631.  314;  Weiland  v.  Sunwall  et  al.,  63 

26  Andrews     v.     Richmond,     34  Minn.  320,  65  N.  W.  628;   Barnes 

Hun  (N.  Y.),  20;  James  v.  Plank,  v.  McCrea,  75  Iowa,  267,  9  Am.  St. 

48    Ohio    St    255    (distinguishing  Rep.  473,  39  N.  W.  392. 


22  ORDINARY  BAILMENTS.  [§    25. 

And  where  plaintiffs  delivered  grain  to  an  elevator  com- 
pany under  an  alleged  oral  agreement  that  it  was  to  remain 
in  the  elevator  until  the  plaintiffs  were  ready  to  sell  it,  and 
that  the  elevator  company  was  then  to  have  the  grain  if  it 
would  pay  as  much  as  was  paid  by  others,  and  in  case  it  did 
not  buy  it  was  to  have  one  cent  per  bushel  for  weighing  the 
grain  in  and  out,  plaintiffs  knowing  that  the  grain  so  delivered 
was  mixed  in  a  mass  with  other  grain,  and  that  the  company 
was  accustomed  to  ship  from  the  mass  whenever  the  prices 
suited  them,  and  the  plaintiffs  could  not  have  understood  that 
the  identical  grain  was  in  any  case  to  be  returned  to  them,  it 
was  held  that  the  true  meaning  of  the  contract  was  that  the 
elevator  company  was  to  have  the  option  to  pay  the  best  market 
price  for  the  grain  whenever  plaintiffs  desired  to  close  the 
transaction,  or  return  to  them  an  equal  quantity  of  similar 
grain,  and  that  it  was  a  contract  of  sale  and  not  of  bailment.^" 

§  25.  A  bailment,  a  sale,  or  a  gift. — How  determined. — 
From  what  has  been  said  and  from  the  examples  noted,  it  may 
be  determined  that  the  bailee  is  only  entitled  to  the  possession 
of  the  property  which  is  finally  to  be  redelivered  to  the  bailor ; 
that  the  title  to  the  property  does  not  pass  to  the  bailee  but  re- 
mains in  the  bailor,  while  in  a  sale  there  is  a  transfer  of  the 
absolute  title  in  the  property  or  thing  for  a  price  in  money. 
And  so  in  case  of  a  gift  the  title  of  the  property  passes  upon 
delivery,  while  in  bailment  the  title  of  the  property  remains  in 
the  bailor,  and  the  possession,  or  the  right  to  possession,  only, 
passes  to  the  bailee. 

30  Barnes  Bros.  V.  McCrea  &  Co.,  (1900),   57  N.   E,   262;    Baker  v. 

75  Iowa,  267;  and  see  cases  cited;  Born,  17  Ind.  App.  422,  46  N.  E. 

O'Dell  V.  Leyda,  46  Ohio  St.  244,  930;  Yockey  v.  Smith,  181  111.  564; 

20  N.  E.  472;   Pontiac  Nat.  Bank  State  v.  Cowdrey,  79  Minn.  94,  48 

V.  Lungan,  28  111.  App.   401;    Me-  L,  R.  A.  92. 
Grew    V.    Thayer,    —    Ind.    — 


CHAPTER   II. 


OF  THE  CLASSIFICATION  OF  BAILMENTSL 


26.  Roman  classification  adopted 

by  authors. 

27.  Modem    classification  upon 

the  theory  of  recompense 
or  no  recompense. 

28.  Modern     classification     In- 


cludes   earlier    classifica- 
tion. 

29.  The  most  general  subdivis- 

ion of  bailments. 

30.  Chart  showing  classification 

of  bailments. 


§  26.  Roman  classification  adopted  by  authors. — To  Lord 
Holt,  Sir  William  Jones  and  Judge  Story  are  we  indebted  for 
that  thorough  classification  of  this  subject  that  has  been  recog- 
nized by  every  author  that  has  written  upon  it.  They  followed, 
in  large  degree,  the  Roman  system,  and  adopted  the  Roman 
names  given  to  the  different  kinds  of  bailments,  which  have 
been  so  thoroughly  woven  into  our  laws  that  now  they  are 
recognized  as  a  part  of  it.  Following  this  system,  the  divisions 
of  the  law  of  bailments  usually  adopted  may  be  said  to  be  as 
follows  :^ 

I.  Depositum:  A  naked  bailment  of  personal  property  to 
be  kept  by  the  bailee  without  recompense  and  returned 
to  the  bailor  when  the  purpose  of  the  bailment  has 
been  accomplished. 

II.  Mandatum:   A  mandate,   or  the  bailment  of  personal 

property,  as  to  which  the  bailee  undertakes  without 
recompense  to  do  something. 

III.  Commodatum:  A  loan  for  use,  or  the  bailment  of  per- 

sonal property  borrowed  or  used  by  the  bailee  without 
reward;  but  in  our  law,  of  course,  to  be  restored  in 
specie. 
rV.  Pignus:  A  pledge  or  pawn,  or  the  bailment  of  personal 
property  to  a  creditor  as  security  for  some  debt  or  en- 
gagement. 
V.  Locatio  conductio:   A  hiring  which  is  always  for  some  re- 
ward. 
Judge  S'tory  divides  the  locatio  bailments  into  four  subdi- 
visions : 

I.  Locatio  ret:    The  hiring  of  a  thing  for  use. 
II,  Locatio  oporis  faciendi:    The  hiring  of  work  and  labor 
upon  a  thing. 

1  Story  on  Bailm.  sees.  4,  5,  6,  etc. 


24  OBDINABY  BAILMENTS.  [§    29. 

III.  Locatio  custodies:  The  hiring  of  care  and  service  to  be 

performed  or  bestowed  on  the  thing  delivered. 

IV.  Locatio  oporis  mercium  vehendarum:   The  hiring  of  the 

carriage  of  goods  from  one  place  to  another.' 

§  27.  Modern  classification  upon  the  theory  of  recompense 
OT  no  recompense. — That  the  classifications  of  these  early  au- 
thors were  not  only  comprehensive,  but  have  been  of  inestima- 
ble value  to  the  development  of  the  law  of  bailments,  there  can 
be  no  doubt;  but  the  more  modem  theory  has  been  to  classify 
along  the  line  of  gratuitous  and  nongratuitous  bailments.  Is  the 
bailment  for  the  sole  benefit  of  the  bailor,  for  the  sole  benefit  of 
the  bailee,  or  for  the  mutual  benefit  of  both  parties? 

This  modern  classification,  however,  is  but  a  remodeling  of 
the  former  and  earlier  one,  and  is  used,  and  is  principally  im- 
portant, for  the  purpose  of  illustrating  in  a  concise  manner  the 
liability  and  duty  devolving  upon  the  parties  to  the  bailment. 

§  28.    Modem  classification  includes  earlier  classification. 

I.  A  bailment  for  the  sole  benefit  of  the  bailor  includes  (a) 
Depositum,  (b)  Mandatum. 

II.  A  bailment  for  the  sole  benefit  of  the  bailee  includes 
Commodatum. 

III.  A  bailment  for  the  benefit  of  both  bailor  and  bailee  in' 
eludes  (a)  Pignus,  (b)  Locatio  Conductio  with  all  of  the  subdi- 
visions made  by  Judge  Story. 

§  29.  The  most  general  subdivision  of  bailments. — The  most 
general  classification  of  bailments  is  that  which  divides  the  sub- 
ject into  (1)  Ordinary  Bailments,  and  (2)  Exceptional  Bail- 
ments. 

(1)  The  ordinary  bailment  is  one  in  which  the  rights  and 
liabilities  of  the  parties  are  determined  by  the  benefit  or  com- 
pensation received  and  the  negligence  or  diligence  of  the  bailee 
in  the  particular  case,  as  for  example,  if  the  bailment  is  for  the 
sole  benefit  of  the  bailor  the  law  requires  of  the  bailee  slight 
diligence  and  he  is  held  liable  for  gross  negligence ;  if  the  bail- 
ment is  for  the  sole  benefit  of  the  bailee  he  is  required  to  exer- 
cise high  diligence  and  is  liable  for  slight  negligence ;  if  the 
bailment  is  for  the  benefit  of  both  parties  the  bailee  is  required 
to  exercise  ordinary  diligence  and  is  liable  for  ordinary  negli- 
gence. 

(2)  Exceptional    bailments    belong    to    the    non-gratuitous 

2  story  on  Bailm.  sec.  8. 


§    29.]  CLASSIFICATION   OF  BAILMENTS.  25 

class,  bailments  for  the  benefit  of  both  parties ;  but  because  of 
their  exceptional  character  the  law  requires  of  the  bailee  more 
than  ordinary  duties  and  a  much  greater  degree  of  diligence 
than  ordinary  diligence.  The  bailees  in  this  class  of  bailments 
are  (a)  postmasters,  (b)  innkeepers,  (c)  common  carriers.  The 
reason  for  requiring  the  exceptional  duties  and  a  greater  de- 
gree of  diligence  in  these  cases  arises  in  the  demands  of  public 
policy. 

(a)  Postmasters  are  public  servants  answerable  to  the  indi- 
viduals who  may  suffer  because  of  their  negligence  as  well  as 
the  public  authority  which  has  supervision  over  them.  Because 
of  this  it  would  seem  they  are  classified  as  exceptional.  The 
diligence,  however,  required  is  no  greater  than  ordinary  but 
the  duties  are  public  and  exceptionally  important.' 

(6)  Iwnkeepers  are  classified  as  exceptional  because  of  their 
relation  to  the  public  and  their  guests.  "While  in  a  certain  sense 
they  pursue  a  private  business  in  that  they  furnish  their  own 
place  for  carrying  it  on  and  rely  upon  the  compensation  col- 
lected from  their  patrons  to  support  it  they  are  nevertheless  to 
a  great  extent  public  servants  depending  upon  the  public  for 
support  and  in  turn  guaranteeing  to  all  who  come  to  the  inn  as 
guests,  care  and  protection.  Because  of  this  and  the  submission 
of  the  guest  to  their  care  and  the  placing  of  his  baggage  and 
personal  effects  in  the  control  of  the  innkeeper  the  law  has  de- 
termined that  the  liability  shall  be  more  than  that  of  an  or- 
dinary bailee,  that  it  shall  be  in  the  nature  of  a  insurer. 

(c)  Common  carriers  belong  peculiarly  to  the  exceptional 
class  of  bailments.  Whether  the  subject  of  the  carriage  be 
freight  or  passengers  dependance  for  safety  and  delivery  at 
the  destination  is  essentially  upon  the  carrier.  The  business, 
while  to  a  certain  extent  private,  in  that  the  carrying  facilities 
are  private  property  and  the  undertaking  is  supported  and  car- 
ried on  at  the  expense  of  the  carrier,  to  a  much  more  important 
extent  it  is  a  public  business,  and  public  policy  demands  that 
it  be  subject  to  laws  and  regulations  that  will  vouchsafe  to 
those  who  patronize  the  carrier  a  sufficiently  high  degree  of 
diligence  to  protect  life  and  property  and  so  this  bailment  re- 
lation is  not  left  in  the  ordinary  classification,  requiring  only 
ordinary  care,  but  a  greater  diligence  is  required,  it  is  placed 
in  the  class  of  exceptional  bailments. 

8  Post,  sec.  388. 


26 


ORDINARY  BAILMENTS. 


[§  30. 


§  30.  Chart  showing  classification  of  bailments. — 


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CHAPTER  m. 

OF    THE    RIGHTS.    DUTIES    AND    LIABILITIEIS    GENERALLY    OP 
BAILOR  AND  BAILEE. 


31.  Object  of  chapter. 

32.  Gratuitious  and  non-gratuit- 

ous bailfnents. 

33.  Consideration  supporting  the 

contract. 

34.  Negligence   or   diligence. 

35.  Chart    showing    duties    and 

liabilities. 

36.  What  is  diligence  and  what 

is  negligence. 

37.  Definition  generally  accepted. 


§  38.  Every  case  ruled  by  its  own 
circumstances. 

39.  High    diligence — Gross    neg- 

ligence. 

40.  Negligence  and  fraud  distin- 

guished. 

41.  Diligence    and    negligence — 

Questions  of  law  and  fact. 

42.  Classification    of    conditions 

and   circumstances. 


§  31.  Object  of  chapter. — It  is  not  our  intention  under  this 
head  to  go  fully  into  the  discussion  of  the  rights,  duties  and  lia- 
bilities of  the  parties  to  a  bailment,  but  simply  to  call  attention 
to  some  of  the  general  doctrines  touching  upon  that  subject, 
and  to  determine  more  particularly  the  rules  governing  the 
same. 

§  32.  Gratuitous  and  non-gratuitous  bailments. — One  of  the 
most  important  subdivisions  of  bailments  is  that  dividing  them 
into  (1)  gratuitous,  and  (2)  non-gratuitous  bailments.^  Upon 
these  subdivisions  rest  very  largely  the  determination  of  the 
diligence  required  of  the  parties  in  each  individual  case  and 
their  liability  for  negligence.  It  has  become  a  settled  doctrine 
of  the  law  of  bailments  in  ascertaining  the  rights,  duties  and 
liabilities  of  the  parties  to  the  relation,  to  determine,  (1)  was 
the  bailment  for  the  sole  benefit  of  the  bailor,  or  (2)  was  it  for 
the  sole  benefit  of  the  bailee,  or  (3)  for  the  benefit  o^  both. 
These  questions  determined,  the  law  fixing  the  liability  may  be 
applied. 

§  33.  Consideration  supporting  the  contract. — The  bailment 
relation  is  one  of  contract  and  must  rest  upon  a  legal  consider- 
ation. Where  the  bailment  is  for  the  benefit  of  both  parties^ 
there  is  no  difficulty  in  determining  a  valid  consideration  mov- 


1  Ante,  sec.  30. 


28  ORDINARY  BAILMENTS.  [§   34. 

ing  between  the  parties,  and  where  it  is  for  the  sole  benefit  of 
the  bailee  it  is  apparent  that  the  benefit  supports  the  legal  obli- 
gation to  carry  out  the  purpose  and  duties  of  the  contract ;  but 
in  eases  of  gratuitous  bailments  solely  for  the  benefit  of  the 
bailor  much  discussion  has  been  had  in  determining  the  ques- 
tion of  consideration.  Some  of  the  courts  have  held  that  there 
is  no  contract  binding  upon  the  bailee  because  he  receives  no 
consideration;  that  as  he  is  to  receive  no  benefit  from  the  ac- 
ceptance of  the  goods,  the  subject  of  the  bailment,  the  presump- 
tion is  against  his  having  intended  to  accept  the  delivery  of 
the  property  in  exchange  or  consideration  for  any  promise,  ex- 
press or  implied.^  In  some  of  the  earlier  cases  this  doctrine  was 
accepted,  but  was  never  generally  adopted,  and  it  may  be  said 
that  the  great  weight  of  authority  is  overwhelmingly  against  it, 
and  it  has  long  been  settled  that  the  delivery  of  the  property 
is  a  sufficient  consideration  for  the  contract  by  the  depository 
or  manditory  if  accepted  by  him  for  the  purposes  of  the  bail- 
ment.^ As  said  by  some  of  the  courts,  the  very  confidence  re- 
posed by  the  bailor  in  the  bailee  is  a  sufficient  consideration  to 
hold  the  latter  to  a  proper  execution  of  the  trust:  or,  as  was 
said  by  Lord  Holt  in  the  celebrated  case  of  Coggs  v.  Barnard, 
"the  owner  trusting  the  bailee  with  the  goods  is  a  sufficient  con- 
sideration to  oblige  him  to  a  careful  management."* 

§  34.  Negligence  or  diligence. — Coupled  with  the  question  of 
benefit  is  the  question  of  negligence  or  diligence;  for  the  re- 
ceiving of  benefits  brings  the  requirement  of  diligence,  and  the 
absence  to  a  certain  extent  excuses  negligence.  If,  for  example, 
the  bailee  is  to  receive  no  compensation  and  no  benefit,  and 
the  bailment  relation  is  solely  for  the  benefit  of  the  bailor,  a 
"depositum  or  a  mandatum,"  the  law  does  not  require  of  the 
bailee  so  high  a  degree  of  diligence  as  it  would  in  case  of  com- 
modatum,  where  the  benefit  is  entirely  for  the  bailee,  and  no 
benefit  whatever  to  the  bailor.  And  so  the  duties  and  liabili- 
ties of  the  bailee,  when  there  is  no  special  contract,  depend 

2  Thorn  v.  Deas,  4  John  (N.  Y.)  4  Coggs  v.  Bernard,  2  Lord  Ray. 
84;  McGee  v.  Bast,  6  C.  J.  Marsh.  909;  Young  v.  Noble,  2  Disney 
(Ky.),  453;  Story,  Bailments,  (Ohio),  485;  Kinchiloe  v.  Priest,  89 
§§  31,  137,  140,  166,  169.  Mo.  240,  58  Am.  Rep.  117;  Walden 

3  McDaniels  v.  Robinson,  26  Vt.  v.  Karr,  88  111.  49 
316;     McCawley    v.    Davidson,   10 

Minn.  478. 


§  34. 


RIGHTS,  DUTIES  AND  LIABILITIES. 


29 


almost  entirely  upon  the  benefit  received,  and  the  diligence  he 
has  shown  or  the  negligence  he  is  guilty  of.  If  the  bailment, 
for  example,  is  for  the  sole  benefit  of  the  bailor,  the  law  only 
requires  of  the  bailee  slight  diligence,  and  holds  him  liable  for 
gross  negligence.  If  for  the  sole  benefit  of  the  bailee,  then  he 
is  held  to  high  diligence,  and  liable  for  slight  negligence;  if 
for  the  benefit  of  both  bailor  and  bailee,  ordinary  diligence  and 
ordinary  negligence.^ 


s  Where  bailment  is  for  the  sole 
benefit  of  the  bailor  only  slight 
diligence  is  required.  Liable  for 
gross  negligence.  A  gratuitous 
bailee  of  a  special  deposit  held 
subject  to  this  rule.  Gerish  v. 
Savings  Bank,  138  Mich.  46;  Whit- 
ney V.  First  National  Bank,  55  Vt. 
154,  54  Am.  Rep.  598;  Davis  v. 
Gay,  141  Mass.  531;  Hibernian, 
etc.  Ass'n  v.  McGrath,  154  Pa.  St. 
296,  35  Am.  St.  Rep.  828,  26  Atl. 
377;  Griffith  v.  Zipperwick,  28 
Ohio  St.  388;  Smith  v.  Elizabeth- 
port  Bank  Co.,  55  Atl.  248  (N.  J.). 
Where  the  bailment  is  for  the  sole 
benefit  of  the  bailee  high  diligence 
is  required  of  him,  and  he  is  liable 
for  slight  negligence.  Hagabush  v. 
Rayland,  78  111.  40;  Wood  v.  Mc- 
Clure,  7  Ind.  155;  Green  v.  Hog- 
lingsworth,  5  Dana  (Ky.),  173. 
Where  bailment  for  the  benefit  of 
both  parties,  bailee  must  exercise 
ordinary  diligence,  and  is  liable 
for  ordinary  negligence.  Fairmont 
Coal  Co.  V.  Jones  &  Adams,  67  C. 
C.  A.  265,  134  Fed.  711;  Hunter 
v.  Ricks  Bros.,  127  Iowa,  108,  102 
N.  W.  826;  Eastman  v.  Patterson, 
38  Vt.  146;  Brown  v.  Patterson,  10 
Cush.  (Mass.),  117;  Gleason  v. 
Beers,  59  Vt.  581,  59  Am.  Rep.  757, 
10  Alt.  86;  Bunnell  v.  Sterne,  122 
N.  Y.  539,  19  Am.  St.  519;  Wood- 
ruff V.  Painter,  150  Pa.  St.  91,  30 
Am.  St.  Rep.  786,  24  Atl.  621;  Wal- 
port  v.  Bohn,  126  Ga.  532,  55  S.  E. 
181;    Union    Stock   Yards    Co.   v. 


Mallory,  157  111.  554,  48  Am.  St. 
341;  Onderkirk  v.  Bank,  119  N.  Y. 
263;  Bowman  v.  Western  Fur  Co., 
96  Iowa,  188,  64  N.  W.  775,  777; 
Wamser  v.  Browning,  King  &  Co., 
95  N.  Y.  Supp.  1051.  Presumption 
of  want  of  care  when  the  subject 
of  the  bailment  is  injured  while  in 
bailee's  custody  by  an  accident 
such  as  in  the  ordinary  course  of 
things  does  not  happen  when  due 
care  is  exercised.  Swenson  v. 
Suave  etc.,  Co.,  145  Fed.  Rep.  727; 
Powers  v.  Jughardt,  91  N.  Y.  Supp. 
556.  Total  failure  to  redeliver  or 
account  for  goods  by  bailee  to 
whom  intrusted  for  delivery, 
prima  facie  evidence  of  negligence. 
Simonoff  v.  Fox,  91  N.  Y.  Supp.  757. 
When  the  bailed  property  is  de- 
stroyed, the  burden  of  proof  is  on 
the  bailee  to  overcome  the  pre- 
sumption that  the  destruction 
arose  from  lack  of  ordinary  care; 
but  when  he  shows  that  it  oc- 
curred from  operation  of  forces 
not  within  his  control,  the  case  is 
at  an  end  unless  the  bailor  either 
disproves  the  claimed  cause  of  the 
loss,  or  shows  want  of  ordinary 
care  co-operating  with  such  de- 
stroying cause.  Hunter  v.  Ricks 
Bros.,  127  Iowa,  108,  102  N.  W.  826; 
Schropshier  v.  Sidebotton,  30 
Mont.  406,  76  Pac.  941;  Jackson 
V.  McDonald,  57  Atl.  126;  Frank- 
houser  v.  Wagner,  62  111.  59.  Con- 
tra, see  Winteringham  v.  Hayes, 
144  N.  Y.  1,  38  N.  E.  999. 


30 


ORDINARY  BAILMENTS. 


[§  36. 


§  35.  Chart  showing  duties  and  liabilities. — The  rights,  du- 
ties and  liabilities  of  the  parties,  bailor  and  bailee,  the  degree 
of  diligence  to  which  they  are  held,  and  of  negligence  for  which 
the  are  liable,  may  be  shown  by  the  following  chart : 


IF  BAILMENT  FOR 


MUST  EXERCISE 


LIABLE  FOR 


Sole  benefit  of  bailor,  1 
a  depositum  or  man-  ]■  Slight  Diligence. 
datum.  J 


1 


Gross  Negligence. 


If  for  sole  benefit  of 
bailee,  a  commoda- 
turn.  J 

If  for  the  benefit  of 

both   bailor  and 

bailee,  a  pignua. 
Locatio  rei. 
Locatio    operis    faci- 

endi.  I 

Locatio  custodian. 
Locatio    operis    mer-  | 

eium  vehendarum.      J 


High  Diligence. 


Slight  Negligencb. 


Ordinary  Diligence.  )■  Ordinary  Negligencr 


§  36.  What  is  diligence  and  what  is  negligence. — It  is  a  diffi- 
cult matter  to  give  a  definition  of  diligence  or  negligence,  or 
of  high  diligence  or  gross  negligence,  as  applied  to  the  law  of 
bailments.  Negligence  and  diligence  are  relative  terms,  and 
depend  upon  the  circumstances  of  the  particular  case,-  what 
would  be  diligence  in  one  case  would  be  far  short  of  it  iu  an- 
other. 

As,  for  example,  it  would  not  be  considered  negligent  for  a 
workman  to  smoke  a  cigar  in  a  foundry,  but  if  he  were  to  do 
so  in  a  powder-mill  it  would  be  the  grossest  of  negligence. 
So,  while  one  might  be  said  in  the  one  case  to  be  exercising 
ordinary  diligence,  in  the  latter  he  would  be  guilty  of  gross 
negligence. 

So,  one  driving  a  span  of  horses  to  a  wagon  in  the  country 
where  there  were  few,  if  any,  using  the  highway,  it  might  be 
said  that  very  fast  driving  would  be  ordinary  diligence,  but 
as  he  approached  a  crowded  city  a  much  greater  caution  would 
be  required,  and  the  driving  at  a  high  rate  of  speed  on  a 
crowded  city  street  would  be  gross  negligence.    So  we  see  that 


§   39.]  EIGHTS,  DUTIES  AND  LIABILITIES.  31 

very  many  elements  of  fact  enter  into  the  determination  of  the 
question. 

§  37.  Definition  generally  accepted. — A  definition  generally 
accepted  by  authors  and  the  profession  is,  "ordinary  diligence 
is  that  care  and  diligence  which  an  ordinarily  prudent  man,  un- 
der like  circumstances,  would  exercise  in  matters  of  his  own 
concern,"  * 

§  38.  Every  case  ruled  by  its  own  circumstances. — And  so 
it  may  be  seen  that  each  and  every  case  must  be  ruled  by  its 
own  facts  and  circumstances.  The  advent  of  every  new  inven- 
tion, the  discovery  of  every  new  and  important  force  that  is 
appropriated  by  man  and  made  subservient  to  the  great  on- 
marching  industries  in  these  days  of  progress,  bring  with  them 
new  and  varied  circumstances  and  conditions  which  must  be 
considered  in  defining  and  determining  what  is  negligence  and 
what  is  diligence  in  the  given  case.  The  principles  of  law,  set- 
tled and  staid,  remain  the  same,  but  the  facts  are  new  and  con- 
tinually changing,  and  we  are  called  upon  to  marshal  and  class- 
ify them,  and  apply  the  governing  rules  of  law. 

§  39.  High  diligence — Gross  negligence. — We  have  defined 
diligence  by  adopting  the  usual  definition  of  that  term,  and 
have  seen  that  it  is  a  relative  term.  So  high  diligence  and  gross 
negligence  are  alike  relative  terms  and  are  subject  to  the  same 
discussion  and  examples  for  explanation.  At  the  most,  we  can 
only  say  that  high  diligence  is  more  than  ordinary ;  slight  dili- 
gence less  than  ordinary  diligence,  and  gross  negligence  is  the 
want  of  slight  diligence,  varying  in  degree  according  to  the  ele- 
ments of  carefulness  or  want  of  care. 

The  degrees  of  diligence  or  negligence  can  only  be  defined 
by  comparison  with  that  diligence  which  is  usually  exercised 
by  the  ordinarily  prudent  man  in  caring  for  his  own  under 

6  Ruggles  V.  Fay,  31  Mich.  141 ;  like  nature,  not  sufficient,  for  he 

Maynard  v.  Buck,  100  Mass.  40;  may  not  be  an  ordinarily  prudent 

Wood  V.  Remick,  143  Mass.  102;  man.    Ray  v.  State  Bank,  10  Bush 

Clayton  v.  Steiger,  139  111.  41,  28  (Ky.),  344;  Carlisle,  etc.,  Bank  v. 

N.  E.  987;  Casey  v.  Suter,  36  Md.  Graham,   79   Pa.   St.   106,   21   Am. 

1;   Swentzel  v.  Bank,  147  Pa.  St.  Rep.  49,  53.    Where  it  is  held  that 

140,  23  Atl.  405,  30  Am.  St.  718,  ordinary  diligence  is  not  measured 

15  L.  R.  A.  305,  and  note  citing  by  the  standard  of  care  the  bailee 

cases.     That  the  bailee  exercises  takes  of  his  own  property,  but  by 

the  same  care  of  the  bailment  that  the   care   exercised  by   ordinarily 

he   does   of  his   own   property   of  prudent  men  as  a  class. 


32  ORDINARY  BAILMENTS.  [§   39. 

like  circumstances.  High  diligence  is  a  degree  of  carefulness 
greater  than  that  care  usally  exercised  by  the  ordinarily  pru- 
dent man,  as  above  stated,  while  slight  diligence  is  not  so  much 
as  ordinary.  Gross  negligence  is  a  lesser  degree  of  care  than 
slight  negligence,  and  slight  negligence  is  less  than  ordinary 
care,  and  greater  than  gross  negligence.  And  so  it  can  be 
seen  it  would  be  exceedingly  difficult  to  accurately  define  de- 
grees of  diligence  or  negligence,  for  every  case  depends  on  its 
particular  facts.'^ 

Mr.  Justice  Bradley  in  the  case  of  Bailway  v.  Lockwood  * 
in  discussing  this  question  said:  ''The  defendants  endeavor  to 
make  a  distinction  between  gross  and  ordinary  negligence,  and 
insist  that  the  judge  ought  to  have  charged  that  the  contract 
was  at  least  effective  for  excusing  the  latter. 

"We  have  already  adverted  to  the  tendency  of  judicial  opin- 
ion adverse  to  the  distinction  between  gross  and  ordinary  neg- 
ligence. Strictly  speaking,  these  expressions  are  indicative 
rather  of  the  degree  of  care  and  diligence  which  is  due  from  a 
party  and  which  he  fails  to  perform,  than  of  the  amount  of 
inattention,  carelessness,  or  stupidity  which  he  exhibits.  If 
very  little  care  is  due  from  him,  and  he  fails  to  bestow  that  lit- 
tle, it  is  called  gross  negligence.  If  very  great  care  is  due  and 
he  fails  to  come  up  to  the  mark  required,  it  is  called  slight  dili- 
gence. And  if  ordinary  care  is  due,  such  as  a  prudent  man 
would  exercise  in  his  own  affairs,  failure  to  bestow  that  amount 
of  care  is  called  ordinary  negligence  .  .  .  and  hence  it  is 
more  strictly  accurate,  perhaps,  to  call  it  simply  'negligence.' 
And  this  seems  to  be  the  tendency  of  modem  authorities.  If 
they  mean  more  than  this,  and  seek  to  abolish  the  distinction  of 
degrees  of  care,  skiU  and  diligence  required  in  the  perform- 
ance of  various  duties  and  the  fulfillment  of  various  contracts, 
we  think  they  go  too  far,  since  the  requirement  of  different 


7  What  constitutes  ordinary  care  generally  discussed,  and  where  it 
or  ordinary  negligence  varies  with  is  said  that  the  care  of  the  prop- 
each  individual  case.  Gray  v.  Mer-  erty  must  be  graduated  according 
riam,  148  111.  179,  35  N.  E.  810,  32  to  the  value  of  the  property,  the 
L.  R.  A.  769.  See  note  and  cases  convenience  of  its  being  made  se- 
cited  in  L.  R.  A.;  Preston  v.  cure,  the  facilities  for  its  being 
Prather,  137  U.  S.  604,  34  L.  Ed.  stolen,  and  the  temptation  thereto. 
788.  Where  the  whole  subject  of  s  17  Wall.  (U.  S.),  382. 
diligence  and  negligence  is  very 


§   -10.]  EIGHTS,  DUTIES  AND  LIABILITIES.  33 

degrees  of  care  in  different  situations  is  too  firmly  settled  and 
fixed  in  the  law  to  be  ignored  or  changed. 

"The  compilers  of  the  French  Civil  Code  undertook  to  abol- 
ish these  distinctions  by  enacting  that  'every  act  whatever  of 
man  that  causes  damage  to  another  obliges  him  by  whose  fault 
it  happened  to  repair  it.'  Toullier,  in  his  commentary  on  the 
code,  regards  this  as  a  happy  thought,  and  a  return  to  the  law 
of  nature.  But  such  an  iron  rule  is  too  regardless  of  the  foun- 
dation principles  of  human  duty,  and  must  often  operate  with 
great  severity  and  injustice." 

In  Huiton  v.  Dibhons^  Lord  Denman  said:  "It  may  well  be 
doubted  whether  between  gross  negligence  and  negligence 
merely  any  intelligible  distinction  exists." 

And  in  Wilson  v.  Britt  ^°  Rolfe,  B.,  said:  "I  could  see  no  dif- 
ference between  negligence  and  gross  negligence ;  that  it  was 
the  same  thing  with  the  addition  of  a  vituperative  epithet." 

But  for  all  the  criticism  of  learned  jurists,  the  fact  still  re- 
mains that  the  law  for  all  time,  since  the  days  of  Lord  Holt, 
has  recognized  these  different  degrees,  and  it  is  often  found 
necessary  to  distinguish  the  difference  in  degrees  under  certain 
facts  and  circumstances.^^ 

§  40.  Negligence  and  fraud  distinguished. — While  gross  neg- 
ligence may  be  evidence  of  fraud,  it  is  not  always  fraud.  The 
distinction  between  negligence  and  fraud  is  very  marked,  and 
it  will  not  do  to  carry  the  often  repeated  doctrine  that  gross 
negligence  on  the  part  of  a  gratuitous  bailee  is  in  legal  effect  a 
fraud  beyond  what  the  statement  really  implies.  Fraud  is  gen- 
erally positive  and  is  coupled  with  an  intent  to  commit  a  wrong, 
while  negligence  is  an  omission  to  perform  a  duty.  One,  as  has 
been  said,  is  in  the  nature  of  a  malfeasance  while  the  other  is 
misfeasance.  This  distinction  was  well  stated  in  Gardner  v. 
Eeartt}'^     The  court  said:    "Fraud  and  negligence  are  by  no 

9  2  Q.  B.  646.  defining  what  gross  negligence  is 

10  11  M.  &  W.  113.  there  is  a  certain  degree  of  negli- 

11  Whitney  v.  Lee,  8  Mete.  91;  gence  to  which  everyone  attaches 
Mason  v.  St.  Louis,  etc.,  Co.,  60  great  blame;  and  that  it  is  a  mis- 
Mo.  App.  93;  Carlisle,  etc..  Bank  take  to  suppose  that  things  are 
V.  Graham,  79  Pa.  St.  106,  21  Am.  not  different  because  a  strict  line 
49.  In  Beal  v.  South  Dover  R.  R.  of  demarcation  cannot  be  drawn 
Co.,  11  L.  T.  Rep.   (N.  S.)   184,  3  between  them. 

H.  &  C.  337,  341,  it  was  said  that  123  Denio   (N.  Y.),  232-236.     In 

although  there  may  be  difficulty  in      Carlisle,  etc..  Bank  v.  Graham,  100 
3 


34  ORDINABT  BAILMENTS.  [§  41. 

means  identical  in  their  nature  or  effect.  Fraud  is  a  deceitful 
practice  or  willful  device,  resorted  to  with  intent  to  deprive  an- 
other of  his  right,  or  in  some  manner  to  do  him  an  injury.  It 
is  always  positive ;  the  mind  concurs  with  the  act ;  what  is  done, 
is  done  designedly  and  knowingly.  But  in  negligence,  what- 
ever may  be  its  grade,  there  is  no  purpose  to  do  a  wrongful  act, 
or  to  omit  the  performance  of  a  duty.  There  is,  however,  an  ab 
sence  of  proper  attention,  care  or  skill.  It  is  strictly  nonfeas- 
ance, not  malfeasance.  This  is  the  general  idea,  and  it  marks 
the  distinction  between  negligence  and  fraud.  In  the  first,  there 
is  no  positive  intention  to  do  a  wrongful  act ;  but  in  the  latter,  a 
wrongful  act  is  ever  designed  and  intended.  Negligence,  in  its 
various  degrees,  ranges  between  pure  accident  and  actual  fraud, 
the  latter  commencing  where  negligence  ends.  Negligence  is 
evidence  of  fraud,  but  still  is  not  fraud." 

§  41,  Diligence  and  negligence — Questions  of  law  and  fact. 
— ^Diligence  or  negligence  is  generally  a  mixed  question  of  law 
and  fact.  The  degree  of  diligence  required  in  a  given  case  to  be 
exercised  by  the  bailee  or  the  degree  of  negligence  that  will 
render  him  liable  are  questions  of  law  for  the  court;  whether  it 
has  been  proven  in  the  case  that  the  bailee  has  exercised  the  de- 
gree of  diligence  required  and  defined  by  the  court  as  required 
or  is  guilty  of  that  degree  of  negligence  the  court  has  deter- 
mined will  render  him  liable,  are  questions  of  fact  for  the  jury. 
In  other  words,  the  principles  of  law  that  govern  the  case  as  to 
the  degree  of  diligence  required  or  the  degree  of  negligence  that 
will  render  the  bailee  liable  are  for  the  court;  the  facts  that 
determine  whether  the  bailee  has  exercised  that  diligence  or 


TJ.  S.  699,  it  was  held  that  gross  pected  such  care  and  diligence  as 
negligence  may  be  and  often  is  persons  ordinarily  use  in  their 
consistent  with  good  faith  and  own  affairs,  and  such  skill  as  he 
honest  intention.  The  court  say:  has.  From  the  latter  is  reason- 
"The  authorities  are  numerous,  ably  expected  such  as  is  exercised 
and  the  language  of  judgments  va-  in  the  ordinary  and  proper  course 
rious,  but  for  all  practical  pur-  of  similar  business,  and  such  skill 
poses  the  rule  may  be  stated  to  as  he  ought  to  have,  namely,  the 
be,  that  the  failure  to  exercise  skill  usual  and  requisite  in  the 
reasonable  care,  skill  and  dili-  business  for  which  he  receives 
gence  is  gross  negligence.  What  payment."  It  may,  however,  fur- 
is  reasonable  varies  in  the  case  of  nish  evidence  of  fraud.  Tudor  v. 
bailees  and  that  of  bailees  for  hire.  Lewis,  3  Mete.  (Ky.),  378. 
Prom  the  former  is  reasonably  ex- 


§42.] 


RIGHTS,  DUTIES  AND  LIABILITIES. 


35 


been  guilty  of  the  negligence  explained  and  defined  by  the 
■court  are  for  the  jury.  As  has  been  said,  what  is  due  care  is  a 
question  of  law  to  be  decided  by  the  court;  whether  the  bailee 
has  exercised  such  care  is  a  question  of  fact  for  the  jury.^^ 

Circumstances  may  exist  that  would  require  the  court  to  de- 
termine the  whole  matter;  as,  for  example,  if  the  facts  were 
such  that  every  fair  and  reasonable-minded  man  could  draw 
but  one  conclusion,  such  that  among  fair  and  reasonable  men 
there  could  be  no  difference  of  opinion,  then  in  such  case 
there  would  be  nothing  for  the  jury,  and  the  court  would  deter- 
mine the  whole  matter  as  a  question  of  law.  Such  a  case  would, 
however,  very  seldom  arise. 

§  42.  Classification  of  conditions  and  circumstances. — Much 
has  been  said  and  written  by  law  writers  and  courts  of  last  re- 
sort by  way  of  classifying  the  several  conditions  and  facts  that 
aid  in  determining  these  questions. 

"What  constitutes  ordinary  diligence,"  says  Judge  Story,^* 


13  Rowland  v.  Jones,  73  N.  C.  52; 
Fisk  V.  Forsyth  Co.,  57  Conn.  118. 
That  negligence  is  a  question  of 
law  and  fact  means  nothing  more 
than  that  it  is  a  question  for  the 
jury  under  instructions  of  the 
court.  Baltimore  R.  Co.  v.  State, 
36  Md.  366;  Nolan  v.  N.  Y.,  etc., 
R.  Co.,  53  Conn.  461.  In  Detroit, 
etc.,  R.  Co.  V.  Van  Steinburg,  17 
Mich.  118-122,  the  court  say:  "It 
Is  a  mistake,  therefore,  to  say,  as 
is  sometimes  said,  that  when  the 
facts  are  undisputed  the  question 
of  negligence  is  necessarily  one  of 
law.  This  is  generally  true  only 
of  that  class  of  cases  where  a 
party  has  failed  in  the  perform- 
ance of  a  clear  legal  duty.  When 
the  question  arises  upon  a  state  of 
facts  on  which  reasonable  men 
may  fairly  arrive  at  different  con- 
clusions, the  fact  of  negligence 
cannot  be  determined  until  one  or 
the  other  of  those  conclusions  has 
been  drawn  by  the  jury.  The  in- 
ferences to  be  drawn  from  the  evi- 
dence must  either  be  certain  and 


incontrovertible,  or  they  cannot 
be  decided  upon  by  the  court. 
Negligence  cannot  be  conclusively 
established  by  a  state  of  facts 
upon  which  fair  minded  men  may 
well  differ." 

14  Story  on  Bailments,  sec.  15. 
In  Erie  Bank  v.  Smith,  3  Brews- 
ter (Pa.),  9,  it  was  held  that  what 
might  be  ordinary  diligence  in  one 
country  and  in  one  age,  might  at 
another  time  and  in  another  coun- 
try be  negligence  or  even  gross 
negligence.  In  discussing  Judge 
Story's  definition  the  court  say: 
"As,  for  instance,  to  give  a  homely 
illustration,  in  many  parts  of  the 
interior  of  the  country  where 
thefts  are  rare,  it  is  quite  usual 
for  people  to  leave  their  barns 
where  horses  and  cattle  are  kept 
without  being  locked  at  night; 
and,  indeed,  it  is  not  an  uncom- 
mon thing  for  the  dwelling  houses 
In  which  the  owner  and  his  fam- 
ily and  his  treasure  all  are,  to  be 
left  open  and  unlocked  during  all 
the  night.     In  cities  It  would  be 


36 


ORDINARY  BAILMENTS. 


[§42. 


"may  always  be  materially  affected  by  the  nature,  the  bulk, 
and  the  value  of  the  articles.  A  man  would  not  be  expected 
to  take  the  same  care  of  a  bag  of  oats  as  of  a  bag  of  gold;  of 
a  bale  of  cotton  as  as  of  a  box  of  diamonds  or  other  jewelry ;  of 
a  load  of  common  wood  as  of  a  box  of  rare  paintings ;  of  a  rude 
block  of  marble  as  of  an  exquisite  sculptured  statue.  The  value 
especially  is  an  important  ingredient  to  be  taken  into  consid- 
eration upon  every  question  of  negligence ;  for  that  may  be 


deemed  a  great  want  of  ordinary 
care  to  do  that,  although  nothing 
might  be  easier  than  to  pick  the 
lock  of  a  stable,  or  to  wrench  a 
padlock  off  a  stable  door  or  barn 
door.  So,  too,  if  robbers  were 
known  to  frequent  particular  dis- 
tricts of  the  country,  much  greater 
precaution  would  be  required  on 
the  part  of  the  bailees  or  pawnees 
than  in  districts  where  robberies 
were  rare  occurrences.  What 
then  is  usually  done  in  a  place  in 
respect  to  things  of  like  nature 
(which  must  be  considered  as 
done  in  reference  to  surrounding 
circumstances,  in  reference  to  the 
danger  which  threatens,  in  refer- 
ence to  the  liability  of  loss),  what 
is  generally  done  in  a  place  in  re- 
spect to  things  of  like  nature, 
whether  more  or  less  in  point  of 
diligence,  than  is  exacted  in  an- 
other place,  becomes  in  fact,  the 
general  measure  of  diligence  in 
that  place,  and  continues  the 
standard.  'What  constitutes  ordi- 
nary diligence  may  also  be  mate- 
rially affected  by  the  nature  of  the 
articles — the  bulk  or  value  of  the 
articles  claimed  to  be  pledged.' 
This  is  very  important;  a  man 
would  not  be  expected  to  takG 
the  same  care  of  a  bag  of  oats  as 
of  a  bag  of  dollars;  of  a  bale  of 
cotton  as  of  a  case  of  diamonds; 
of  an  ordinary  block  of  marble  as 
of  an  exquisitely  sculptured  statue. 
The  bailee,  therefore,  ought  to  pro- 


portion his  care  to  the  value  of 
the  thing  that  is  intrusted  to  him, 
and  to  the  nature  of  it,  because 
both  as  regards  the  value  of  the 
thing  and  the  nature  of  it,  upon 
that  depends  the  injury  or  loss 
likely  to  arise  to  the  party  with 
whom  he  has  dealt — to  the  bor- 
rower who  has  entrusted  him  with 
the  thing.  It  is  undoubtedly  true 
that  in  the  case  of  a  pledge  of 
this  character  it  is  not  enough 
to  say  that  the  pawnee  took  the 
same  care  of  the  thing  pledged  as 
he  did  of  his  own  goods,  nor  is  it 
any  answer  to  the  demand  of  the 
pawnor  or  debtor,  to  show  that 
his  own  property  to  an  equal 
or  greater  amount  was  lost  at 
the  same  time  and  by  the  same 
alleged  negligence.  He  must  go 
further  than  that,  and  satisfy  the 
jury  that  there  was  ordinary  dil- 
igence in  keeping  his  own  prop- 
erty. If  it  appears  that  he  was 
not  diligent  in  keeping  his  own 
property,  that  would  be  no  excuse 
for  negligence  in  keeping  the  prop- 
erty of  others  entrusted  to  him. 
Yet,  nevertheless,  as  every  man 
is  presumed  to  exercise  ordinary 
care  of  his  own  property  until  the 
contrary  is  shown,  where  the  bail- 
ee's own  goods  or  property  are 
lost  by  the  same  occurrence,  the 
same  theft,  the  same  fire,  or 
whatever  it  may  be  that  destroys 
it,  in  the  absence  of  evidence 
there  is  a  presumption  in  its  fa- 


§   42.]  RIGHTS,  DUTIES  AND  LIABILITIES.  37 

gross  negligence  in  the  ease  of  a  parcel  of  extraordinary  value 
which,  in  the  case  of  a  common  parcel,  would  not  be  so.  The 
degree  of  care  which  a  man  may  reasonably  be  required  to  take 
of  anything  must,  if  we  are  at  liberty  to  consult  the  dictates  of 
common  sense,  essentially  depend  upon  the  quality  and  value 
of  the  thing,  and  the  temptation  thereby  afforded  to  theft.  The 
bailee,  therefore,  ought  to  proportion  his  care  to  the  injury  or 
loss  which  is  likely  to  be  sustained  by  any  improvidence  on 
his  part. ' ' 

To  the  circumstances  and  conditions  important  in  determin- 
ing diligence  or  negligence  in  caring  for  the  subject  of  the 
bailment,  noted  by  Judge  Story,  might  be  added,  the  season  of 
the  year,  the  climate  of  the  country,  the  time  and  place  of  doing 
the  business ;  all  these  would  be  important  elements  to  be  con- 
sidered. If  the  climate  or  season  be  cold  or  warm  or  if  the 
country  be  one  adapted  to  the  business  in  hand.  If  the  times 
and  the  place  be  propitious  or  otherwise,  all  would  materially 
affect  the  successful  carrying  out  of  the  object  of  the  bailment. 
Failure  in  a  given  case  to  fully  observe  and  provide  for  these 
conditions  as  they  might  exist  might  be  gross  negligence.  Their 
observance  as  an  ordinarily  prudent  man  would  observe  them 
in  matters  of  his  own  affairs  would  be  ordinary  diligence,  and 
so  what  under  certain  conditions  might  be  held  to  be  ordinary 
diligence,  under  certain  other  of  these  conditions  and  at  differ- 
ent times  might  be  held  to  be  gross  negligence. 

vor — a  presumption  that  he  used  the  goods  of  others,  entrusted  to 

ordinary  diligence  as  to  his  own  him  as  to  his  own  goods — a  pre- 

goods.     If  it  be  a  case  in  which  sumption  being  nothing  more  than 

there  is  no  evidence  at  all  on  the  the  result  of  common  experience 

subject  of  want  of  ordinary  care  (common    experience    being    the 

on   his   part,    the    presumption   in  mother  of  all  presumption)    that, 

that  case  is  that  he  did  exercise  like  all  other  men,  he  took  ordi- 

the  same   diligence  in  regard  to  nary  care  of  his  own  interest." 


CHAPTER  IV. 

SOME  FURTHER  GENERAL  PRINCIPLES  TOUCHING  RIGHTS 
AND  LIABILITIES  OF  PARTIES  TO  BAILMENTS. 


43.  An  element  of  agency. 

44.  Under    circumstances    may 

bind  bailor. 

45.  Right  to  use  the  property. 

46.  Unwarranted  use  would  ren- 

der the  bailee  liable. 
Bailee    may    protect    the 

property  and  his  interest. 
Skilled  bailee. 
Rule    not    always    carefully 

stated. 
Special  deposits  in  banks. 

Determining  negligence. 

Honesty  and  good  faith  de- 
manded. 
53.  Bailee   may  protect  himself 

against   claim   of   third 

parties. 
What  would  excuse  liability. 
Unlawful  tortious  possession 

would  render  bailee  liable 

for  injury  or  loss. 
Rights   and    duties   to   third 

parties. 

57.  Bailee  against  third  parties. 

58.  Modifying   or   enlarging   re- 

sponsibility by  contract. 

How  far  can  the  bailee  lessen 
his  responsibility  by  con- 
tract. 

Redelivery  to  bailor. 


47. 

48. 
49. 

50. 
51. 
52. 


54. 
65. 


56. 


59. 


60. 


61.  Not  always  required   to  re- 

deliver the  specific  prop- 
erty. 

62.  Excuses  for  non-delivery. 

63.  Conversion  of  the  property. 

64.  Bailee's  right  to  compensa- 

tion and  to  a  lien. 

Agreement  for  compensa- 
tion, express  or  implied, 
necessary  to  create  lien. 

If  no  statute  or  express  con- 
tract giving  bailee  lien 
he  may  have  common-law 
lien. 

Two  kinds  of  liens. 

Delivery  to  the  bailee  for  the 
purpose  of  the  bailment 
necessary  to  the  establish- 
ment of  the  lien. 

Possession  of  the  property 
an  essential. 

Finder  of  property — His 
compensation — Lien. 

Extinction  of  the  lien — Pay- 
ment or  tender. 

72.  The  lien  may  be  waived. 

73.  Lien  once  lost  cannot  be  re- 

vived. 

Right  of  the  bailor  to  com- 
pensation. 

Enforcement  of  the  lien  of 
bailee.  . 


65 


66 


69 


70 


71 


74 


75 


§  43.  An  element  of  agency. — Where  the  bailee,  acting 
within  the  scope  of  the  bailment  contract  and  in  good  faith, 
has  found  it  necessary  to  make  expenditures  in  order  to  pre- 
serve the  subject  of  the  bailment,  as,  for  example,  if  the  subject 
of  the  bailment  be  a  valuable  horse,  and  the  horse  should  be 


§   45.]  GENERAL  PRINCIPLES.  39 

taken  sick,  the  bailee  would  be  justified  in  employing  a  veteri- 
nary and  in  purchasing  medicine  to  restore  the  health  of  the 
horse.  And  should  the  horse  break  out  of  the  inclosure  by  no 
fault  of  the  bailee,  and  become  impounded  for  damage  done, 
the  bailee  would  be  expected  to  pay  the  damage.  Acting  in 
good  faith,  and  within  the  reasonable  scope  and  necessity  of 
the  bailment  contract,  expressed  or  implied,  the  bailee  should 
pay  necessary  expenses  and  damages,  and  may  recover  the 
same  from  the  bailor.  In  this  respect  the  same  rule  applies  that 
is  applicable  to  principal  and  agent. 

§  44.  Under  circumstances  may  bind  bailor. — And  so  under 
circumstances  which  make  it  reasonably  necessary,  the  bailee 
may  contract  for  the  care  of  the  bailed  property  in  the  name  of 
the  bailor,  and  the  bailor  will  be  bound  to  pay  for  the  same. 
The  law  takes  a  broad  common-sense  view  of  the  matter.  If  the 
property,  the  subject  of  the  bailment,  is  animals,  it  is  under- 
stood they  must  be  fed  and  perhaps  sheltered ;  if  other  property, 
perhaps  insured  ;^  so  the  bailee  would  have  authority  to  do  with 
the  bailment  what  he  would  do  under  just  such  circumstances 
if  it  were  his  own. 

§  45.  Right  to  use  the  property. — The  general  rule  is  if  the 
purpose  of  the  bailment  is  for  custody  and  not  for  use,  the 
bailee  has  no  right  to  use  the  bailed  property;  he  is  simply  to 
keep  the  property  in  his  custody,  and  give  it  such  care  as  good 
faith  and  reasonable  and  fair  judgment  demands.  There  are, 
however,  exceptions  to  this  rule,  or  at  least  apparent  excep- 
tions, in  cases  where  the  proper  care  of  the  property  would  re- 
quire that  it  be  used.  As,  for  example,  a  milch  cow;  it  would 
be  the  duty  of  the  bailee  to  milk  her  at  the  usual  time,  indeed 
this  would  be  required,  and  to  fail  to  do  this  would  render  him 
liable  in  damages.  A  flock  of  sheep  would  require  for  proper 
care  that  their  wool  should  be  removed  when  the  summer 
months  come  on.  These  cases  could  hardly  be  called  exceptions 
to  the  general  rule,  because  it  is  the  kind  of  care  that  the  prop- 
erty demands. 

§  46.  Unwarranted  use  would  render  the  bailee  liable. — 
Should  the  bailee  use  the  property  to  an  extent  unwarranted  by 
the  bailment,  he  would  become  liable  to  the  bailor  in  an  action 
for  damages,  and  under  certain  circumstances  for  conversion 

iFagan  v.  Thompson,  38  Fed.  467;  Fumes  v.  Union  Nat.  Bank,  147 
111.  570. 


40  ORDINARY  BAILMENTS.  [§   46. 

of  the  property,  depending  somewhat  upon  the  extent  of  the 
damage  to  the  property. 

The  use  to  which  the  property  may  be  put  is  often  fixed  by 
the  contract  of  bailment,  but  if  there  is  no  expressed  contract 
fixing  the  use  of  the  property,  then  it  must  be  determined  by 
the  attending  circumstances,  the  nature  of  the  property,  and 
what  might  be  reasonably  presumed  to  be  a  proper  and  neces- 
sary use.  As,  for  example,  if  the  property  bailed  were  a  fine 
carriage  team  which  were  let  to  the  bailee  for  the  purpose  of 
pleasure  driving,  and  he  should  put  them  on  a  plow  and  work 
them  upon  a  farm,  there  would  be  no  difficulty  in  concluding 
that  he  was  putting  the  bailed  property  to  an  unauthorized 
use. 

A  leading  case  upon  the  subject  is  that  of  Alvord  v.  Daven- 
port,'^ where  Mr.  Justice  Parke  gives  us  a  very  clear  discussion 
of  the  subject.  He  says :  ' '  The  authorities  seem  to  agree  that 
the  right  of  the  bailee  to  use  the  property,  in  the  absence  of  ex- 
press contract  on  the  subject,  depends  on  the  circumstances  of 
the  case,  the  character  and  purpose  of  the  bailment,  the  nature 
of  the  property  in  connection  with  the  other  attending  circum- 
stances. One  test  or  principle  applicable  to  the  subject  is  to 
consider  whether  from  the  circumstances  the  consent  of  the 
owner  to  the  use  may  fairly  be  presumed.  It  is  said  in  the 
books  that  if  the  use  would  be  for  the  benefit  of  the  property, 
the  assent  of  the  owner  should  generally  be  presumed,  but  not 
so  if  the  use  would  be  injurious  or  perilous.  It  would  seem  that 
if  the  use  would  be  indifferent,  the  right  to  use  should  be  deter- 
mined the  way  other  circumstances  incline.  In  some  cases  the 
assent  of  the  owners  may  be  inferred  as  a  fact  from  the  circum- 
stances ;  but  that  is  not  in  all  cases  necessary ;  for  in  some  cases 
the  presumed  assent  is  a  mere  fiction,  and  the  question  as  to  the 
right  of  the  bailee  to  use  the  property  becomes  a  question  of 
law  upon  a  given  state  of  facts  without  reference  to  any  actual 
assent  of  the  owner  in  fact.  It  is  generally  not  only  the  right, 
but  the  duty,  of  the  bailee  to  use  the  property  so  far  as  neces- 
sary to  its  preservation.  To  this  extent  the  assent  of  the  owner 
may  be  presumed — as  in  case  of  the  milking  of  a  milch  cow; 
and  in  the  case  of  a  horse,  exercise  and  moderate  use  to  the  ex- 
tent necessary  to  the  health  and  vigor  of  the  animal.  Again,  it 
is  laid  down  by  the  elementary  writers  that  the  right  to  use  the 

2  43  Vt.  30. 


§   47.]  GENERAL  PRINCIPLES.  41 

property  may  depend  on  whether  it  is  property  of  a  nature  that 
requires  expense  to  keep  it;  and  if  so,  the  bailee  may  use  it 
reasonably  to  compensate  him  for  the  charge  of  keeping.  This 
fact,  however,  would  not  necessarily  determine  the  right  with- 
out reference  to  the  character  of  the  bailment  and  other  circum- 
stances." 

It  may  be  said  to  be  the  general  holding  that  "the  right  of 
a  bailee  to  use  the  thing  bailed  is  strictly  confined  to  the  use 
expressed  or  implied  in  the  particular  transaction ;  and  in  case 
of  an  unauthorized  use,  the  bailee  makes  himself  liable  for  any 
loss,  although  it  be  by  inevitable  casualty."  ^ 

§  47.  Bailee  may  protect  the  property  and  his  interest. — 
As  we  have  seen,  the  bailee  only  has  a  possessory  title  to  the 
hailed  property,  and  the  right  to  its  custody  and  use  to  the  ex- 
tent of  the  contract  of  bailment,  but  that  title  is  paramount 
to  any  other  claim  except  the  title  of  the  owner,  and  during 
the  legal  existence  of  the  bailment,  even  the  owner  cannot  dis- 
turb the  bailee  in  his  possession,  custody,  and  use  to  the  extent 
of  the  contract. 

The  bailee  may  bring  replevin  for  the  possession  of  the  prop- 
erty, and  in  some  instances  trover  for  its  value ;  as  when  it  is 
destroyed  or  damaged  to  an  extent  that  the  benefits  of  posses- 
sion are  impaired ;  or  where  it  would  be  necessary  to  protect  it, 
the  owner  may  sustain  an  action  of  trover  for  its  value.* 

3  Lane  v.  Cameron,  38  Wis.  603;  a  wrong  doer;  and  accordingly  it 
Devoin  v.  Lumber  Co.,  64  "Wis.  is  held  that  a  bailee  without  inter- 
616,  54  Am.  Rep.  649;  Clark  v.  est  has  a  title  arising  simply  upon 
Whitaker,  19  Conn.  319.  Where  a  his  possession  sufficient  to  main- 
bailee  accepted  a  horse  to  board  tain  trover  against  one  who 
with  directions  that  he  was  not  to  wrongfully  invades  that  posses- 
use  him  in  any  way,  the  use  of  sion."  Shaw  v.  Kaler,  106  Mass. 
him  under  the  bailment  was  a  con-  448 ;  Vermillion  v.  Parsons,  101 
version.  Collins  v.  Bennett,  46  N.  Mo.  App.  602,  73  S.  W.  994.  In 
Y.  490.  For  a  general  discussion  Chamberlain  v.  West,  37  Minn.  54, 
of  the  cases,  see  notes  to  McCurdy  33  N.  W.  114,  the  court  say: 
v.  Wollblom,  etc.,  Co.,  3  Am.  &  "Nothing  is  better  settled  than 
Eng.  Annotated  Cases,  468.  that  in  actions  for  tort  in  the  tak- 

4  In  Harrington  v.  King,  121  ing  or  conversion  of  personal 
Mass.  2C9,  271,  the  court  say:  "It  property  against  a  stranger  to  the 
is  a  leading  principle  that  bare  title,  a  bailee,  mortgagee  or  other 
possession  constitutes  sufficient  special  property  man,  is  entitled 
title  to  enable  the  party  enjoying  to  recover  full  value,  and  must  ac- 
it  to  obtain  a  legal  remedy  against  count  to  the  general  owner  for  the 


42  ORDINARY   BAILMENTS.  [§    50. 

§  48.  Skilled  bailee. — Where  the  care,  custody  or  services 
are  undertaken  by  a  gratuitous  bailee  who  is  skilled  in  the  par- 
ticular business  involved,  the  same  general  rule  of  diligence 
applies.  It  will  be  seen,  however,  that  even  slight  diligence  in 
such  a  case  might  secure  to  the  bailor  the  benefit  of  skilled 
professional  service,  because,  although  the  bailee  is  to  receive 
no  compensation,  the  bailor  is  entitled  to  receive  the  kind  of 
service,  care  and  custody  the  bailee  holds  out  to  the  public  he 
is  competent  to  perform.  As,  for  example,  where  a  watch  is 
left  with  a  skilled  watchmaker  for  repairs,  the  repairs  to  be 
made  without  compensation,  he  is  required  to  render  such 
service  as  he  claims  and  gives  out  he  is  able  to  render,  and  to 
do  less  than  that  would  be  gross  negligence.  The  same  rule 
is  applied  in  the  ease  of  a  skilled  surgeon,  who,  without  com- 
pensation, undertakes  to  perform  a  surgical  operation.  He 
must  use  all  of  the  professional  skill  he  ordinarily  uses  and 
gives  out  to  the  public,  and  to  those  who  employ  him,  that  he 
is  in  the  habit  of  using.  And  it  may  be  said  that  this  same 
rule  would  apply  in  cases  of  special  deposits  in  banks ;  although 
there  is  no  compensation,  and  the  bailment  is  gratuitous,  the 
exercise  of  less  skill  and  care  in  looking  after  the  property  than 
the  bank  would  usually  exercise  in  matters  of  its  own  would 
be  considered  gross  negligence,  and  if  loss  or  injury  resulted 
from  it  the  bank  would  be  liable.  Very  many  examples  might 
be  given,  but  sufficient  have  been  noticed  to  illustrate  the  rule. 

§  49.  Rule  not  always  carefully  stated. — It  would  appear 
that  there  is  quite  a  tendency  among  a  few  of  the  judges  to 
loosely  state  the  degree  of  diligence  required,  especially  in 
cases  of  the  bailee  in  gratuitous  bailments;  and  according  to 
some  of  the  cases  it  would  seem  that  "ordinary  diligence"  is 
always  required,  or  the  same  degree  of  diligence  that  is  re- 
quired in  "mutual  benefit"  bailments,  for  they  fail  to  make 
any  distinction;  but  the  better  class  of  authority  has  always 
clung  to  the  doctrine  of  degrees  of  diligence  and  negligence  in 
fixing  or  excusing  liability. 

§  50.  Special  deposits  in  banks. — In  these  cases  two  impor- 
tant questions  are  generally  involved:     1st.     The  question  as 

surplus     recovered     beyond     the  recover  the   value  of  his  special 

value  of  his  own  interest;  but  as  property."  Atkins  v.  Moore,  82  111. 

against  the  general  owner  or  one  240;  Jellett  v.  St.  Paul,  etc.,  R.  R. 

in  privity  with  him  he  can  only  Co.,  30  Minn.  265. 


§   51.]  GENERAL  PRINCIPLES.  43 

to  whether  the  servants  of  the  bank  (corporation)  acted  within 
the  scope  of  their  authority,  and  for  the  bank  in  accepting  the 
property;  and,  2d.  The  question  of  diligence  or  negligence  that 
occasioned  its  loss. 

As  we  have  seen,  a  corporation  may  be  a  bailee  of  property ; 
but  as  a  corporation,  from  its  very  nature,  must  of  necessity 
act  by  its  officers  and  servants,  the  question  at  once  presents 
itself:  in  doing  the  business,  in  accepting  the  trust,  were  they 
acting  as  corporate  officers  or  individuals?  Was  their  action 
within  the  corporate  powers  of  the  bank?  For  if  the  act  done 
was  not  within  the  corporate  authority,  it  would  be  held  to  be 
an  individual  act  of  the  officers  or  servants,  and  the  corpora- 
tion would  not  be  liable ;  and  so  if  the  officers  or  servants  did 
not  act  nor  pretend  to  act  within  the  scope  of  their  authority 
to  the  knowledge  of  the  bailor  the  bank  would  not  be  liable 
But  even  in  that  case  if  the  property  or  deposit  was  received  by 
the  corporation  with  the  knowledge  and  approval  of  its  officers, 
the  bailor  delivering  it  in  good  faith,  the  corporation  would  be 
liable  for  its  loss,  if  the  loss  was  occasioned  by  gross  negligence. 
The  only  way  of  escaping  liability  in  such  a  case  would  be  to  re- 
turn the  property  to  the  owner,  or  get  rid  of  its  possession  in 
some  other  lawful  way,  or  retaining  it,  to  exercise  the  diligence 
required  for  its  protection.^ 

If,  however,  the  accepting  of  the  trust  was  within  the  corpo- 
rate authority,  and  the  officers  or  servants  were  acting  within 
the  scope  of  their  powers,  then  the  second  question,  as  to  neg- 
ligence or  diligence  resulting  in  loss,  would  determine  the  ques- 
tion of  liability  of  the  corporation.^ 

§  51.  Determining  negligence. — Very  many  questions^ 

arise  in  determining  negligence  on  the  part  of  the  corpora- 
tion. As  in  case  of  a  bank  that  is  the  depositary  of  a  spe- 
cial deposit:  Did  the  corporation  furnish  a  suitable,  fit  place 
for  the  keeping  of  the  property  safe  from  fire  or  from  robbers  ? 
If  stolen  by  its  own  servants  or  officers  in  charge,  did  the  bank 
have  knowledge  that  they  were  dishonest?  Did  the  bank  use 
diligence  in  the  employment  of  fit  and  proper  servants  ? 

5  National  Bank  v.  Graham,  100  for  gross  negligence,  the  bailment 
U.  S.  699,  701.  being    gratuitous.      In    Cutting   v. 

6  Foster  v.  Essex  Bank,  17  Mass.  Morlen,  78  N.  Y.  454,  459,  held  if 
478,  a  leading  case  where  the  bailment  for  mutual  benefit  ordi- 
bailee  defendant  was  held  liable  nary  diligence  required. 


44  ORDINARY  BAILMENTS.  [§   52. 

In  a  Massachusetts  case,  Smith  v.  First  National  Bank,''  it 
was  held,  in  a  case  of  special  deposit  which  was  lost  from  the 
bank  vaults,  that  in  case  of  gratuitous  bailment  it  must  appear 
that  the  corporation  was  guilty  of  gross  carelessness  of  which 
the  loss  was  the  result,  and  that  this  might  appear  from  the 
fact  that  the  corporation  did  not  furnish  a  proper  place  for 
the  custody  of  the  property;  or  from  failure  to  take  proper 
precautions  in  guarding  the  place;  or  negligence  in  selecting 
suitable  persons  to  attend  to  the  care  and  custody;  or  in  fail- 
ing to  discharge  persons  after  having  knowledge  of  their  un- 
fitness. In  Pennsylvania  the  court  held,  in  a  case  where  bonds 
were  deposited  with  the  bank  as  a  special  deposit  and  were 
stolen  by  the  teller,  that  "nothing  short  of  a  knowledge  of  the 
true  character  of  the  teller,  or  of  reasonable  grounds  to  suspect 
his  integrity,  followed  by  a  neglect  to  remove  him,  can  be  said 
to  be  gross  negligence  without  raising  a  contract  for  care 
higher  than  a  gratuitous  bailment  can  create. ' '  ® 

This  discussion,  however,  belongs  to  another  part  of  our  sub- 
ject, viz.,  the  liability  of  gratuitous  bailees. 

§  52.  Honesty  and  good  faith  demanded. — Nothing  short  of 
honesty  and  good  faith  will  excuse  the  bailee  in  case  of  loss  or 
injury.  Every  bailment  relation  is  a  contract  relation,  either 
express  or  implied;  a  contract  which  imposes  certain  responsi- 
bilities upon  the  parties  to  the  bailment,  and  this  contract  must 
be  strictly  and  in  good  faith  carried  out  by  the  parties.  The 
bailor  must  in  good  faith  and  honestly  do  his  duty  in  the  mat- 
ter of  the  bailment.  The  law  will  not  permit  him  to  do  any- 
thing that  will  impair  or  encroach  upon  the  legal  rights  of  the 
bailee  in  the  full  possession  and  enjoyment  of  the  property  to 
the  extent  of  the  bailment  contract ;  as,  for  example,  by  depriv- 
ing the  bailee  of  the  possession,  or  by  injuring  the  property, 
and  thus  making  it  less  useful;  and  on  the  other  hand,  the 
bailee  is  held  to  strict,  good  faith  and  honesty  in  carrying  out 
the  contract  relation.  He  cannot  sell  or  pledge  the  property 
or  otherwise  deal  with  it  in  a  way  to  injure  the  bailor;  and 
while  in  possession  as  bailee  he  will  not  be  allowed  to  set  up 
a  claim  of  ownership  in  himself;  and  should  he  become  the 
owner  of  a  title  adverse  to  the  title  of  the  bailor,  he  must  first 
return  the  possession  of  the  property  to  the  bailor  before  he 

7  99  Mass.  605,  611.  s  Scott  v.  National  Bank  of  Ches- 

ter Valley,  72  Pa.  St.  471-479. 


§   55.]  GENERAL  PRINCIPLES.  45 

will  be  heard  in  the  courts  to  assert  his  own  claim  of  title ;  and 
should  the  bailee  undertake  to  obtain  the  title  adverse  to  the 
bailor,  the  bailor  could  at  once  recover  the  possession  of  the 
property,  and  the  bailment  contract  would  be  considered  at 
an  end.'' 

§  53.  Bailee  may  protect  himself  against  claim  of  third  par- 
ties.— While  the  bailee  cannot  hold  the  property  adversely  to 
the  bailor  to  benefit  himself,  or  obtain  for  himself  title  adverse 
to  the  bailor,  he  may,  in  case  the  property  is  claimed,  and  the 
possession  demanded  by  a  third  party,  protect  himself  from 
damage  on  account  of  the  adverse  claims  of  the  bailor  and  the 
third  party.  (1)  He  may  compel  the  parties  claiming  title  to 
interplead,  and  thus  obtain  judgment  of  the  court  as  to  whick 
of  them  is  entitled  to  the  property,  or  (2)  at  his  peril  he  may 
recognize  the  claim  of  the  third  party  and  join  with  him  to  sus- 
tain his  title  to  the  property.  This,  however,  he  does  at  his 
risk ;  for  if  the  bailor  should  sustain  his  title,  he  could  by  rea- 
son of  the  action  of  the  bailee  terminate  the  bailment. 

§  54.  What  would  excuse  liability. — If  the  property  in  pos- 
session of  the  bailee  is  lost,  injured  or  destroyed  by  reason  of 
the  act  of  God,  the  public  enemy,  irresistible  force  or  inevitable 
accident,  or  by  fire  or  robbery  v/ithout  the  negligence  of  the 
bailee,  the  bailee  would  not  be  liable;  the  degree  of  diligence 
that  would  be  required,  or  of  negligence  that  would  render  him 
liable,  would  depend  upon  the  kind  of  bailment  and  will  be  dis- 
cussed in  another  chapter.  We  here  state  the  general  rule  in 
cases  where  it  is  understood  that  the  bailee  acted  in  good  faith. 

§  55.  Unlawful  tortious  possession  would  render  bailee  liable 
for  injury  or  loss. — If  the  bailee  has  obtained  possession  of  the 
property  unlawfully  or  tortiously,  then  none  of  the  conditions 
stated  in  the  last  paragraph  would  excuse  him  from  liability; 
he  would  be  liable  absolutely.  The  usual  example  given  is,  if 
one  unlawfully  or  tortiously  obtains  possession  of  my  boat 
and  losses  it  in  a  storm,  no  matter  how  careful  he  may  have 
been  in  its  management,  no  matter  if  the  loss  was  occasioned  by 
the  act  of  God,  because  of  the  tortious  unlawful  possession,  he 
will  be  liable   at  all  events.     And  so  the   tortious   departure 

9  Osgood     V.     Nichols,     5     Gray  Landes,    1    Duv.    (Ky.),    299;    and 

(Mass.),  420;  Burley  v.  Hamilton,  see    cases    cited    3    Am.    &    Eng. 

15   Pick.   (Mass.),  40;    Sinclair  v.  Encyl.  (2d  ed.)  758,  759. 
Murphy,  14  Mich.  392;   Barron  v. 


-46  ORDINARY  BAILMENTS.  [§   57. 

from  the  terms  of  the  contract,  by  misappropriating  the  prop- 
erty or  misusing  it,  renders  the  bailee  liable. 

§  56.  Rights  and  duties  as  to  third  parties.—  (1)  Bailor  liahle 
to,  for  furnishing  certain  necessaries.  As  we  have  seen,  a  grat- 
uitous bailee  is  entitled  to  be  reimbursed  for  that  which  he  has 
necessarily  expended  or  incurred  for  the  preservation  of  the 
property.  It  therefore  follows  that  third  persons  who  have  fur- 
nished to  such  a  bailee  that  which  is  necessary  for  the  preserva- 
tion of  the  property  and  for  the  carrying  out  of  the  bailment 
would  be  entitled  to  be  reimbursed,  and,  upon  failure  of  the 
bailor  to  do  so,  the  party  could  sustain  an  action  against  him. 
The  rule  might  be  different  in  other  classes  of  bailment  and 
would  depend  somewhat  upon  the  contract. 

(2)  Bailor^ s  action  against,  for  injuries  or  for  property.  The 
possession  of  the  property,  and  often  the  use  of  it,  is  with  the 
bailee ;  it  theref ore  follows  that  the  bailor  could  not  sustain 
trespass  or  replevin ;  but  should  the  loss  or  injury  be  permanent 
or  so  serious  as  to  injure  the  value  of  the  property,  the  bailor 
could  sustain  a  special  action  for  the  same.^° 

§  57.  Bailee  against  third  parties. — The  bailee  is  entitled  to 
the  possession  of  the  property.  This  is  the  very  essence  of  his 
rights  as  a  bailee ;  he  therefore  has  a  special  right  or  property 
in  the  chattel  to  the  extent  of  his  bailment  contract  and  can  pro- 
tect it  against  wrongdoers  who  occasion  loss  or  injury.  There- 
fore, if  the  chattel  be  lost  by  a  common  carrier  ^^  or  innkeeper,^^ 
or  is  injured  or  converted  by  a  trespasser,^^  the  bailee  may  sus- 
tain an  action  for  the  property.  In  such  cases  the  damages  are 
not  confined  to  the  mere  interest  of  the  bailee,  but  in  case  of  in- 
jury or  loss  of  the  property  he  may  recover  its  full  value,  to- 
gether with  any  special  damage  to  him,  and  for  all  beyond  his 
t)wn  interest  he  would  be  a  trustee  for  the  bailor  or  owner.^* 

§  58.  Modifying  or  enlarging  responsibility  by  contract. — 
The  bailee  may  by  contract  enlarge  his  liability  to  the  extent 
of  becoming  an  insurer  of  the  property  against  the  perils  to 

loLexin^on    v.  Kidd,    7    Dana  m.  298;   Little  v.  Fossett,  34  Me. 

(Ky.),  245.  545;  Faulkner  v.  Brown,  13  Wend. 

iiMoran     v.     Portland     Steam  63;    Knight  v.   Davis  Car   Co.,  71 

Packet  Co.,  35  Me.  55;   Elkins  v.  Fed.   662.     See   cases   cited   in   3 

Boston,  etc.  Ry.  Co.,  19  N.  H.  337.  Encyl.  7C1. 

i'2  Chamberlain      v.      West,      37  i*  Littlefleld    v.     Biddeford,     29 

Minn.  54.  Me.  310;  Woodman  v.  Notingham, 

13  Peoria  Ry.  Co.  v.  Mclntire,  39  49  N.  H.  387. 


§   60.]  GENERAL  PRINCIPLES.  47 

which  it  is  understood  by  the  parties  it  is  to  be  exposed;  and 
the  contract  may  be  express  or  implied,  and  the  bailment  or 
compensation  to  be  received  therefor  is  a  sufficient  considera- 
tion for  such  an  undertaking/"  It  is  not  infrequently  the  case 
that  the  bailee  by  contract  undertakes  to  return  the  property  in 
as  good  condition  as  when  taken  by  him,  thus  enlarging  his  lia- 
bility.^« 

In  Reinstine  v.  Watts  it  was  held  that  the  reception  of  mer- 
chandise by  a  bailee  under  an  invoice  distinctly  stating  that 
such  merchandise  is  at  the  risk  of  the  bailee  against  loss  by  fire, 
or  otherwise,  until  returned,  no  other  agreement  appearing, 
conclusively  implies  a  promise  upon  the  part  of  the  bailee  to 
assume  such  risk.^'^  And  in  Drake  v.  White  ^®  it  was  held  that  a 
creditor  who  stipulated  with  his  debtor  upon  receiving  personal 
property  as  security,  that  he  would  return  the  property  or  pay 
for  it  if  the  debt  was  paid,  would  be  held  to  that  contract,  the 
court  saying,  "there  can  be  no  doubt  that  if  a  creditor  sees  fit 
to  accept  a  deposit  for  security  upon  such  terms,  and  to  place 
himself  in  the  position  of  an  insurer  of  its  safety,  he  can  legally 
do  so." 

§  59.  How  far  can  the  bailee  lessen  his  responsibility  by 
contract. — Upon  this  there  is  perhaps  not  so  great  unanimity 
among  the  authorities;  it  is,  however,  settled  that  the  contract 
must  not  go  to  the  extent  that  it  may  be  said  to  be  in  contra- 
vention of  positive  law,  or  against  public  policy,  or  it  will  be 
disregarded;  and  so  it  follows  that  a  bailee  cannot  contract 
against  his  own  fraud,  nor  that  he  will  not  be  liable  for  gross 
negligence,  for  that  is  held  to  be  equivalent  to  fraud.  For, 
says  Judge  Story,  ' '  The  law  will  not  tolerate  such  an  indecency 
and  immorality  as  that  a  man  shall  contract  to  be  safely  dis- 
honest. It  therefore  declares  all  such  contracts  utterly  void, 
and  holds  the  bailee  liable  in  the  same  manner  and  to  the 
same  extent  as  if  no  such  contract  ever  existed."  ^® 

§  60.  Redelivery  to  bailor. — With  some  few  exceptions,  which 
will  be  noted,  it  is  the  duty  of  the  bailee,  when  the  object  of 
the  bailment  has  been  accomplished,  to  return  the  property  to 
the  bailor,  or  to  the  person  designated  by  the  contract  of  bail- 

15  strum  V.  Baker,  150  U.  S.  312.  is  117  Mass.  10. 

16  Hunt  V.  Wyman,  100  Mass.  198.  i9  Story,     'Bailments,     sec.     32 ; 

17  84  Me.  139;  Vigo  Agrl.  So-  Lancaster  Co.  Mut.  I.  Bank  v. 
ciety  V.  Brumfiel,  102  Ind.  146,  1  Smith,  62  Pa.  St.  47. 

N.  E.  382. 


48  ORDINARY  BAILMENTS.  [§61. 

ment,  together  with  all  accessions  to  it  during  the  term,  and 
upon  refusal  to  do  so,  unless  he  has  some  legal  excuse  for  not 
redelivering  the  property,  he  will  be  guilty  of  conversion,  and 
the  bailor  can  recover  the  value  of  the  property,  or  by  an  action 
of  replevin  the  specific  property.^"  As  a  general  rule  the  bailor 
has  a  right  to  the  redelivery  of  the  specific  property  bailed  and 
cannot  be  compelled  to  accept  other  property  of  the  same  kind 
of  equal  value  and  quantity  in  lieu  of  it.  In  Atkins  v.  Gamble  ^^ 
the  court  say:  "The  reason  of  the  rule  is  obvious.  The  owner 
may  have  special  reasons  for  desiring  to  retain  that  specific 
chattel;  and  there  may  be  reasons  why  he  attached  a  peculiar 
value  to  it  beyond  the  value  of  other  chattels  of  a  precisely 
similar  kind.  If  his  desire  in  this  respect  be  the  result  of  mere 
caprice,  he  is  entitled  to  be  gratified  in  the  exercise  of  it.  .  .  . 
Hence  the  owner  of  such  chattel  cannot  be  compelled  to  accept 
in  lieu  of  it  another  which  appears  to  be  precisely  similar  and 
of  equal  value.  .  ,  .  But,  we  think,  the  reason  of  the  rule 
ceases  when  applied  to  stocks.  It  is  impossible  that  any  sane 
person  should  have  centered  his  affections  upon  a  particular 
stock  certificate,  or  that  any  violence  could  be  done  to  his  feel- 
ings by  requiring  him  to  accept  another  certificate  of  precisely 
similar  character  in  lieu  of  it.  His  own  certificate  was  only  the 
evidence  that  he  owned  an  undivided  interest  in  the  capital 
and  business  of  the  corporation.  Another  certificate  of  the  same 
kind,  for  the  same  amount  of  stock,  would  entitle  him  to  pre- 
cisely the  same  rights  as  the  former  certificate.  Each  would  be 
a  precise  equivalent  of  the  other,  and  it  is  certain  he  could 
suffer  no  pecuniary  loss  by  the  transaction.  .  .  .  For  these 
reasons,  we  think,  a  different  rule  should  govern  the  conver- 
sion of  a  certificate  of  stock ;  and  if  the  wrong-doer  was  at  all 
times  ready  and  willing  to  transfer  to  the  owner  an  equivalent 
number  of  similar  shares  in  the  same  company,  by  a  proper 
and  valid  certificate,  it  would  present  a  case  for  nominal  dam- 
ages only." 

§  61.  Not  always  required  to  redeliver  the  specific  property. 
It  goes  without  saying  that  it  is  not  always  expected  that  the 
bailee  will  redeliver  the  specific  thing  bailed;  as  when  wheat 
is  taken  to  the  miller  to  be  ground  into  flour,  or  cloth  to  the 

20  Ball  V.  Liney,  48  N.  Y.  9;  Dale  21  42  Cal.  86. 

V.  See,  51  N.  J.  L.  378;   Holbrook 
V.  Wight,  24  Wend.  169. 


§    62.]  GENERAL  PRINCIPLES.  49 

tailor  to  be  made  into  clothing;  from  the  very  nature  of  the 
contract  it  is  understood  that  the  specific  thing  is  not  to  be 
redelivered,  but  delivery  in  its  changed  form  is  expected.  And 
so  in  case  of  property  turned  over  to  a  factor,  he  is  expected 
to  dispose  of  the  property,  but  the  property  or  money  received 
for  it  he  is  required  to  deliver  to  the  bailor.  And,  as  we  have 
seen,  where  grain  is  delivered  to  a  warehouseman,  or  an  ele- 
vator, while  the  same  identical  grain  is  not  to  be  returned,  grain 
of  like  quality,  quantity  and  value  is  expected  to  be  returned, 
and  the  bailee  is  liable  if  he  fails  to  do  so;^^  and  the  courts 
have  held  that  in  case  of  wheat  delivered  to  the  miller  to  be 
manufactured  into  flour,  it  is  not  necessary  to  return  flour  made 
from  the  same  identical  wheat,  but  flour  niay  be  delivered  made 
from  any  wheat  in  the  mill  of  equal  quality  and  kind.^^ 

§  62.  Excuses  for  non-delivery. — 1st.  When  the  property  has 
been  destroyed  or  lost  without  the  fault  of  the  hailee.  As  we 
have  seen,  the  bailee  is  excused  from  liability  when  the  loss  or 
destruction  of  the  property  is  by  the  act  of  God,  the  public 
enemy,  irresistible  force,  inevitable  accident,  or  by  fire  or  rob- 
bery, and  without  the  fault  or  negligence  of  the  bailee.^* 

2d.  The  delivery  of  the  property  to  the  true  owner.  If  the 
true  owner  of  the  property  should  demand  it  of  the  bailee,  he 
would  be  obliged  to  deliver  it  to  such  owner  or  subject  himself 
to  an  action  for  its  recovery,  and  if  the  property  was  delivered 
to  the  true  owner  it  would  be  a  complete  defense  to  an  action 
by  the  bailor  for  the  property  bailed;  but  the  burden  of  prov- 
ing that  the  person  to  whom  he  delivered  the  property  was 
the  true  owner  would  be  upon  the  bailee,  and  such  a  delivery 
would  be  at  his  risk.^^ 

3d.  That  he  had  been  deprived  of  the  property  hy  due  process 
of  law  and  therefore  cannot  redeliver  the  property  to  the  bailor. 
But  the  bailee  would  not  be  protected  by  a  process  or  seizure 
in  a  ease  where  the  bailor  was  not  made  a  party ;  ^^  and  if  he 
should  permit  the  goods  to  be  levied  on  or  attached  as  his  own, 
or  as  the  property  of  a  third  party,  he  would  not  be  exonerated, 

22Ashbey  v.  West,   3   Ind.  170;  ^^  Ante,  §  55. 

Foster  v.  Pettebone,  7  N.  Y.  433;  25  Calhoun  v.  Thompson,  56  Ala. 

Stangher  v.  Green,  10  Am.  Dec.  166;  Powell  v.  Robinson,  76  Ala. 
488.  423. 

23  Inglebright   v.    Hammond,    19  26  Burton   v.    Wilkerson,    18    Vt. 

Ohio,  337.  186. 

4 


50  ORDINARY  BAILMENTS.  [§    62. 

for  delivery  under  such  a  process  would  not  afford  him  pro- 
tection. In  such  case  it  would  always  be  the  duty  of  the 
bailee  to  protect  the  interests  of  his  bailor.^'^ 

The  bailee  is  not  required  to  determine  whether  the  judg- 
ment upon  which  the  process  is  issued  is  correct,  nor  whether 
the  statute  upon  which  the  proceedings  were  had  is  constitu- 
tional, but  he  must  at  his  peril  see  to  it  that  the  process  upon 
which  the  property  is  seized  is  a  valid  process ;  that  upon  its 
face  it  is  regular,  and  that  the  court  had  jurisdiction  to  issue 
the  writ  or  process.^^  And  if  the  propert}^  upon  a  defective  writ 
should  be  forcibly  taken  from  him,  he  should  at  once  institute 
proceedings  to  recover  it.^*  This  principle  of  the  law  is  upon 
the  theory  that  the  person  who  takes  the  property  from  the 
bailee  without  valid  process  is  a  trespasser,  and  his  tortious 
acts  cannot  be  considered  the  act  of  the  law,  but  the  mere  act 
of  a  trespasser,  and  against  such  acts  the  bailee  is  bound  to 
protect  the  property.^" 

In  Boherts  v.  Stuyvesant  ^^  the  court  say:  ''It  is  no  doubt  true 
that  a  bailee  for  reward,  such  as  the  defendant  was,  may  ex- 
cuse himself  for  a  failure  to  deliver  the  property  to  the  bailor 
when  called  for,  by  showing  that  the  property  was  taken  out 
of  his  custody  under  the  authority  of  valid  legal  process,  and 
that  within  a  reasonable  time  he  gave  notice  of  that  fact  to  the 
owner.  .  .  .  But  in  this  case  the  persons  who  took  the  prop- 
erty had  no  process  that  authorized  them  to  do  so,  and  hence 
the  defendant  had  the  right  to  make  such  resistance  to  it  as 
it  would  have  had  if  the  same  parties  attempted  to  take  it 
without  any  process  whatever,   and,   if  overcome  by  superior 

27  Bernard  v.  Knobbs,  3  Daly  mun  v.  Chicago,  etc.  R.  Co.,  81 
(N.  Y.),  35;  Rogers  v.  Weir,  34  Iowa,  540,  46  N.  W.  1049;  Robin- 
N.  Y.  463;  Kelley  v.  Patchell,  5  son  v.  Memphis  R.  Co.,  16  Fed.  57. 
W.  Va.  585.  Seizure  of  property  exempt  from 

28  McAiister  v.  Chicago,  etc.,  R.  execution  on  an  attachment  will 
Co.,  74  Mo.  351.  not  protect  bailee.   Kiff  v.  Old  Col- 

29  Welles  V.  Thornton.  45  Barb.  ony  R.  Co.,  117  Mass.  591,  19  Am. 
(N.  Y.),  390.     When  the  property  Rep.  429. 

has  been  taken  from  him  by  legal  so  Stephens  v.  Vaughn,   20  Am. 

process,  he  should  at  once  notify  Dec.  216. 

the   bailor.     Ohio,    etc.,   R.    Co.    v.  si  123  N.  Y.  57-65,  25  N.  E.  294, 

Yohe,    51    Ind.    181,    19    Am.    Rep.  20  Am.  St.  Rep.  718,  9  L  R.  A.  438; 

727.     But  if  the  bailor  has  knowl-  Edwards  v.  White  Line,  etc.,  Co., 

edge  of  the  fact  formal  notice  by  104  Mass.  159,  6  Am.  Rep.  213. 
the  bailee  is  not  necessary.    Fur- 


§    62.]  GENERAL  PRINCIPLES.  )    51 

force,  they  could  pursue  and  reclaim  it  by  legal  proceedings  or 
otherwise  in  the  same  manner  as  if  the  search-warrant  had  not 
been  procured.  When  property  in  the  custody  of  a  bailee  for  hire 
is  demanded  by  third  persons,  under  color  of  process,  it  becomes 
his  duty  to  ascertain  whether  the  process  is  such  as  requires  him 
to  surrender  the  property,  and  if  it  is  not,  then  it  is  his  right 
and  duty  to  refuse  and  to  offer  such  resistance  to  the  taking, 
and  adopt  such  measures  for  reclaiming  it,  if  taken,  as  a  pru- 
dent and  intelligent  man  would,  if  it  had  been  demanded  and 
taken  under  a  claim  of  right  to  the  property  by  another  with- 
out legal  process.  The  defendant  did  not  discharge  the  duty 
that  it  owed  to  the  bailor  and  owner  of  the  property  by  merely 
making  a  formal  protest  against  entering  the  vaults  where  the 
property  was.  A  person  who  would  allow  his  own  property 
to  be  taken  from  him  under  like  circumstances,  and  without 
doing  more  to  prevent  such  a  result,  or  to  repossess  himself  of 
it  when  taken,  could  scarcely  be  called  a  prudent  man.  It  fol- 
lows that  the  defendant  has  not  shown  that  the  property  was 
taken  from  its  possession  by  legal  process  so  as  to  excuse  its 
loss.  .  .  .  While  a  bailee  who  permits  the  property  of  the 
bailor  to  be  taken  by  a  stranger,  may  excuse  himself  by  showing 
that  he  yielded  to  the  power  of  legal  process,  it  does  not  follow 
that  a  seizure  under  such  process,  after  the  bailee  has  negli- 
gently allowed  the  property  to  pass  into  the  hands  of  trespass- 
ers, or  persons  who  have  no  right  to  it,  will  be  any  protection 
to  him  in  an  action  by  the  owner.  When  the  defendant  per- 
mitted the  property  to  be  taken  from  its  custody,  without  using 
proper  diligence  and  care  to  retain  or  reclaim  it,  the  plaintiff's 
cause  of  action  accrued  and  could  not  be  defeated  by  the  ac- 
tion of  parties  seeking  to  establish  claims  against  the  owner. 
The  rule  in  such  cases  seems  to  be  that  when  a  bailee  is  sued 
by  the  owner  for  the  conversion  or  negligent  loss  of  the  prop- 
erty bailed,  it  is  not  a  defense  or  bar  to  the  action  to  show 
that  after  it  went  into  the  possession  of  others  it  was  levied 
upon  under  process  against  the  owner. ' ' 

4th.  That  the  bailment  property  is  claimed  and  demanded  of 
him  by  other  persons.  Of  course  such  a  claim  or  demand,  if  it 
is  clearly  and  to  the  knowledge  of  the  bailee  without  founda- 
tion and  entirely  groundless,  would  not  excuse  the  bailee;  but 
if  there  appears  to  be  reason  for  the  claim,  and  to  resist  it 
would  subject  the  bailee  to  damages  by  way  of  litigation  or 


52  ORDINARY  BAILMENTS.  [§   64. 

otherwise,  in  such  case  the  bailee  is  under  no  obligation  to  take 
that  risk  and  redeliver  the  property  to  the  bailor;  he  may  in 
such  case  require  the  contesting  claimants  to  settle  the  question 
of  who  has  the  legal  title  by  filing  a  bill  for  interpleader. 

5th.  When  excused  hy  the  terms  of  the  contract.  When  by  the 
terms  of  the  contract,  either  express  or  implied,  the  bailee  is 
excused  from  redelivering  to  the  bailor,  but  is  to  deliver  to 
some  other  person.  As,  for  example,  to  the  agent  of  the  bailor, 
or  to  a  person  designated  and  agreed  upon  by  the  parties. 

§  63.  Conversion  of  the  property. — If  the  bailee  has  no  valid 
excuse  for  not  doing  so,  it  is  his  duty  at  the  termination  and 
accomplishment  of  the  bailment,  upon  the  demand  of  the  bailor, 
to  redeliver  the  property  to  him,  and  a  refusal  to  do  so  would 
be  a  conversion  of  the  subject  of  the  bailment.  If  the  bailee 
should  sell  the  subject  of  the  bailment,  or  do  any  unauthorized 
act  with  reference  to  it,  be  guilty  of  bad  faith,  or  fraud,  or  vio- 
late the  bailment  contract,  the  bailor  would  have  the  right  to 
terminate  the  relation  and  demand  the  return  of  the  property, 
and  if  the  bailee  should  fail  to  redeliver  it  he  would  be  liable 
as  for  a  conversion  of  the  property,  and  the  bailor  would  have 
the  right  to  pursue  the  property  and  retake  it,  even  from  a 
bona  fide  purchaser,  and  upon  demand  and  refusal  could  sustain 
replevin  or  trover  against  such  purchaser,  for  the  reason  that  the 
bailee  had  no  title  to  the  property  and  could,  therefore,  convey 
none,  and  the  title  of  the  bailor  would  not  be  impaired  by  the 
pretended  sale.^^ 

"The  law  is  well  settled  that  a  bailee  cannot  make  a  valid 
sale  of  property  which  is  the  subject  of  the  bailment,  even  to 
a  bona  fide  purchaser  who  may  buy  in  ignorance  of  the  vendor's 
want  of  title.  "^3 

§  64.  Bailee's  right  to  compensation  and  lien. — The  right  of 
the  bailee  to  compensation  and  a  lien  upon  the  property  bailed, 
exists  only  when  the  bailment  belongs  to  the  mutual  benefit 
class,  or  to  that  class  which  is  a  part  of  the  mutual  benefit 
bailments,  called  exceptional  bailments.  For  it  goes  without 
saying  that  this  right  could  not  exist  in  gratuitous  bailments. 

The  right  of  the  bailee  to  compensation  and  the  amount  he  is 
to  receive  is  usually  expressed  in  the  contract  of  bailment,  or 

32  Calhoun  v.  Thompson,  56  Ala.  147;  Lovejoy  v.  Jones,  30  N.  H. 
166.  1G4;    Johnson  v.   Miller,   16   Ohio, 

33Medlin  v.  Wilkinson,   81  Ala.       431;  Dunham  v.  Lee,  24  Vt.  432. 


^66.]  GENEKAL  PRINCIPLES.  53 

may  be  implied  from  the  circumstances  and  the  nature  of  the 
bailment.  Generally,  unless  it  is  stipulated  otherwise,  or  the 
contract  be  such  that  it  can  be  clearly  inferred  from  it  and 
the  circumstances  that  there  was  to  be  no  compensation  for  the 
services  rendered,  the  law  will  imply  a  promise  to  pay  on  the 
part  of  the  bailor  who  has  received  the  benefit  of  them  the 
amount  they  are  reasonably  worth.^* 

Originally  the  common  law  limited  the  right  to  a  lien  for 
services  bestowed,  to  persons  who  from  the  nature  of  their  oc- 
cupation were  obliged,  according  to  their  means,  to  receive  and 
be  at  trouble  and  expense  about  the  property  or  bailment,  as 
those  who  pursued  avocations  necessary  for  the  accommoda- 
tion of  the  public,  as  common  carriers,  innkeepers  and  the  like. 
But,  as  has  been  said,  in  more  modern  times  the  right  has  been 
extended  so  far  that  it  may  be  now  laid  down  as  a  general  rule 
to  which  there  are  few  exceptions,  that  every  bailee  for  hire 
who  by  his  labor  and  skill  has  imparted  an  additional  value  to 
the  goods  of  another  has  a  lien  upon  the  property,  for  his  rea- 
sonable charges  in  relation  to  it  and  a  right  to  retain  it  in  his 
possession  until  those  charges  are  paid.^^ 

§  65.  Agreement  for  compensation,  express  or  implied,  nec- 
essary to  create  lien. — If  there  is  no  agreement  or  understand- 
ing that  the  bailee  is  to  receive  compensation,  and  no  circum- 
stances that  would  naturally  imply  such  an  understanding, 
there  could  be  no  lien.  As,  for  example,  "a  person  not  en- 
gaged in  the  business  of  warehousing  or  storage  who  permits 
another  to  deposit  a  chattle  in  an  unoccupied  room  of  his  prem- 
ises does  not  thereby  acquire  any  lien  on  such  chattel  for  the 
value  of  the  storage. ' '  ^® 

§  66.  If  no  statute  or  express  contract  givibig  bailee  lien — 
May  have  common-law  lien. — If  the  statutes  do  not  create  a  lien 

34  Henderson  v.  Mahoney,  31  Dec.  327;  Wilson  v.  Martin,  40  N. 
Tex.  Civ.  App.  539,  72  S.  W.  1019.  H.     88,     90;     Davidson    v.     Fank- 

35  Every  bailee  for  hire  who  by  uchen,  88  N.  Y.  S.  196.  At  corn- 
labor  or  skill  has  imparted  addi-  mon  law  an  artisan  had  lien  on 
tional  value  to  the  goods  bailed  chattels  for  work  done.  Drum- 
has  a  lien  thereon  for  his  charges.  mond  &  Co.  v.  Mills,  54  Neb.  417, 
Morgan  v.  Conydon,  4  N.  Y.  552;  74  N.  W.  966,  40  L.  R.  A.  761;  Mc- 
Burdick  v.  Murray,  3  Vt.  302,  21  Intyre  v.  Carver,  2  Watts  &  Sergt. 
Am.  Dec.  588;  Arains  v.  Brickley,  392,  37  Am.  Dec.  519;  Hanna  v. 
65  Wis.  26,  56  Am.  Rep.  611;  Mun-  Phelps,  7  Ind.  21,  63  Am.  Dec.  410. 
son  V.  Porter,  63  Iowa,  453;  Prib-  36  Alt  v.  Weidenberg,  6  Bosw. 
ble  V.  Kent,   10   Ind.   325,   71  Am.  (N.  Y.)  176. 


54  ORDINARY  BAILMENTS.  [§   67. 

and  there  is  no  express  contract  giving  to  the  baiLee  a  lien  upon 
the  property,  then  the  bailee  will  hold  the  property  by  virtue 
of  the  common-law  lien  if  the  facts  are  such  as  to  create  it.  At 
common  law  a  lien  is  a  right  arising  by  operation  of  law,  where- 
by one  may  retain  possession  of  another's  property  to  secure 
the  payment  of  a  debt. 

§  67.  Two  kinds  of  liens. — Common-law  liens  are  generally 
of  two  kinds :  First,  Particular  or  specific.    Second,  General. 

(1)  A  particular  or  specific  lien  is  one  that  attaches  to  a  par- 
ticular piece  of  personal  property  upon  which,  in  carrying  out 
the  bailment  contract,  the  bailee  has  performed  services  which 
have  bettered  the  property.  This  lien  attaches  to  specific  ar- 
ticles in  the  possession  of  the  bailee. 

(2)  A  general  lien  as  applied  to  bailments,  is  a  right  to  retain 
the  property  of  the  bailor  to  secure  a  general  balance  due  the 
bailee.  It  is  the  retaining  of  property,  not  only  for  services  upon 
it,  but  for  services  and  work  upon  other  articles  of  the  bailee. 
This  lien  is  not  favored  in  the  law  and  will  be  strictl}''  con- 
strued.^' Nor  does  it  attach  except  by  express  contract  or  agree- 
jueut,  by  necessarily  application,  or  usage. 

This  question  is  ably  discussed  in  Hensel  v.  Noble,^'^^  the  court 
saying:  "It  cannot  be  doubted  that  a  lien  is  given  by  the  com- 
mon law  to  a  tradesman  or  artisan  who  in  the  course  of  his 
trade  or  occupation  receives  personal  property  upon  which  he 
bestows  labor ;  and  his  right  to  a  lien  on  the  property  is  equally 
good  whether  there  be  an  agreement  for  a  stipulated  price  or 
only  an  implied  contract  to  pay  a  reasonable  compensation. 
It  is  equally  clear,  on  principle  as  well  as  authority,  that  where 
there  is  an  entire  contract  for  making  or  repairing  several  arti- 
cles for  a  gross  sum,  the  tradesman  has  a  lien  on  any  one  or 
more  of  the  articles  in  his  possession,  not  only  for  their  propor- 
tionate part  of  the  sum  agreed  upon  for  repairing  the  whole, 
but  for  such  amount  as  he  may  be  entitled  to  for  labor  bestowed 
upon  all  the  articles  embraced  in  the  contract.  ...  If  the 
contract  was  entire,  and  the  defendants  in  pursuance  of  it  had 
not  only  repaired  one  wheel,  but  also  had  bestowed  labor  and 
incurred  expense  for  the  purpose  of  repairing  the  others,  their 
lien  on  the  one  wheel  in  their  possession  was  good  for  the 
whole  amount  of  their  labor  and  expense  done  and  incurred 

37  Taggart  v.  Buckmore,  42  Me.  77.  37a  95  Pa.  St.  345. 


§   70.]  GENERAL  PRINCIPLES.  55 

in  pursuance  of  their  contract,  not  exceeding  the  sum  fixed  by 
the  agreement." 

§  68.  Delivery  to  the  bailee  for  the  purpose  of  the  bailment 
necessary  to  the  establishment  of  the  lien. — The  property  must 
have  been  delivered  by  the  owner  or  his  duly  authorized  agent 
to  the  bailee  for  the  purpose  of  the  bailment,  and  if  it  come  to 
the  possession  of  the  bailee  in  any  other  way  he  can  have  no 
lien.  The  possession  obtained  without  the  consent  of  the  owner, 
or  by  the  bailee  taking  the  property  without  authority,  would 
not  support  the  lien,  except  in  some  cases  of  finding  property. 
It  is  not  necessary,  however,  that  all  of  the  property  should  be 
delivered  at  one  time ;  if  it  came  to  him  by  different  parcels  and 
at  different  times  it  would  be  sufficient.  Nor  need  there  be  an 
actual  delivery.  "The  delivery  may  be  symbolical  or  of  a  part 
for  the  whole.  The  delivery  of  a  key,  where  the  goods  are 
locked  up,  is  so  far  a  delivery  of  the  goods  that  it  will  support 
an  action  of  trespass  against  a  subsequent  purchaser  who  gets 
possession  of  them."    A  constructive  possession  is  sufficient. 

§  69.  Possession  of  the  property  an  essential — No  lien  can  be 
created,  except  by  express  contract,  upon  property  that  has  not 
been  delivered,  and  which  is  not  in  the  possession,  actual  or 
constructive,  of  the  bailee.  Possession  is  an  essential  to  a  com- 
mon-law lien.  It  attaches  only  to  property  delivered  for  the 
purpose  of  the  bailment,  and  upon  which  the  bailee  has,  in 
carrying  out  the  object  of  the  bailment,  performed  labor. 

§  70.  The  finder  of  property — His  compensation — Lien.— 
Property  that  is  found,  coming  lawfully  into  the  possession  of 
the  finder,  creates  the  relation  of  bailor  and  bailee.  The  finder  in 
such  ease  is  the  bailee  of  the  property  and  entitled  to  the  pos- 
session of  it  against  all  the  word  except  the  true  owner.^*  At 
common  law  the  finder  for  the  mere  finding  of  the  property  is 
not  entitled  to  compensation,  but  is  entitled  to  be  reimbursed 
for  expenditures  incident  to  finding  the  property,  in  possessing 
himself  of  it  and  in  good  faith  expended  in  preserving  and  pro- 
tecting it.  The  right  to  such  compensation  would  seem  to  be 
based  upon  an  implied  request  of  the  owner  of  lost  property  to 

38  Lawrence    v.    Buck,    62    Me.  them  from  one  to  whom  he  had 

275;    Tancil    v.    Seaton,    28    Grat.  delivered   them   for   safe   keeping. 

(Va.),  601,  26  Am.  Rep.  380,  where  Hoagland  v.  Forest  Park,  etc.  Co., 

it  was  held  that  a  finder  of  bank  170  Mo.  335,  70  S.  W.  878. 
notes  could  recover  possession  of 


56  ORDINARY  BAILMENTS.  [§    70. 

all  persons  to  secure  it,  care  for  it  and  if  necessary  preserve  it 
and  restore  it  to  him.  Incident  to  and  a  part  of  this  request  is 
an  implied  undertaking  to  indemnify  the  finder  who  has  in 
good  faith  made  expenditures  to  reclaim  the  property  and  re- 
store it  to  the  owner.^®  This  implied  undertaking  would  sup- 
port an  action.  The  cases  are  few  where  the  question  has  been 
decided  but  the  weight  of  authority  and  the  better  reasoning 
would  seem  to  hold  that  for  the  mere  act  of  finding  and  re- 
turning the  property  to  the  owner  there  could  be  no  recovery, 
but  where  it  became  necessary  to  make  expenditures  of  time  or 
money  in  protecting  the  property  lost,  the  owner  taking  the 
property  from  the  finder  with  knowledge  of  such  reasonable 
and  necessary  expenditures  would  become  liable  for  them  upon 
his  implied  undertaking  to  pay  them.*° 

If  the  property  is  not  lost  but  abandoned  or  if  lost  and  after- 
wards abandoned  an  action  for  such  compensation  would  not 
lie  and  in  such  case  the  property  might  be  appropriated  by  the 
finder  having  had  notice  of  such  an  abandonment. 

While  the  finder  in  certain  cases  as  stated  is  entitled  to  com- 
pensation the  law  seems  to  be  well  settled  that  except  by  stat- 
ute providing  for  it  or  in  cases  where  a  reward  is  offered  he  is 
not  entitled  to  a  lien  upon  the  property  to  secure  the  payment 
of  the  amount.    The  law  as  stated  in  Wood  v.  Pearson  *^  seems 

39  Reader  v.  Anderson,  4  Dana  brought  it  ashore,  to  pay  him  for 

(Ky.),  193.  the  necessary  expenses  of  preserv- 

*o  This  doctrine  was  recognized  ing  the  boat  while  in  his  posses- 

in  Chase  v.   Corcoran,   106   Mass.  sion.    We  are  of  the  opinion  that 

286,  288,  where  a  boat  was  found  such  a  promise  is  to  be  implied, 

within   the   ebb   and   flow   of  the  The  plaintiff,  as  the  finder  of  the 

tide   water   in   a   damaged   condi-  boat,    had    the    lawful    possession 

tion.     After  stating  it  was  not  a  of  it  and  the  right  to  do  what  was 

claim  for  salvage  for  saving  the  necessary     for     its     preservation, 

boat  adrift  and  in  danger  of  tide  Whatever    might    have    been    the 

water  and  not  a  claim  for  a  lien,  liability  of  the  owner  if  he  had 

the  court  say,  "His  claim   is  for  chosen  to  let  the  finder  retain  the 

the  reasonable  expenses   of  keep-  boat,  by  taking   it  from  him  he 

ing  and  repairing  the  boat  after  made   himself   liable    to    pay    the 

he  had   brought  it  to  the  shore;  reasonable    expenses    incurred    in 

and  the  single  question  is,  whether  keeping  and  repairing  it." 
a  promise  is  to  be  implied  by  law  4i  45  Mich.  313,  317;    Preston  v. 

from  the  owner  of  a  boat,  upon  Neale,   12   Gray,   222;    Wentworth 

taking  it  from  a  person  who  has  v.    Day,    3    Mete.     (Mass.)     352; 

found  it  adrift  on  tide  water  and  Cummings  v.  Gunn,  52  Pa.  St.  484. 


§   72.]  GENERAL  PRINCIPLES.  57 

to  be  supported  by  authority.  The  court  say:  "According  to 
the  common  law  the  finder  of  goods  lost  on  land  becomes  pro- 
prietor in  case  the  true  owner  does  not  appear.  And  meanwhile 
his  right  as  finder  is  a  perfect  right  against  all  others.  But  if 
the  true  owner  does  appear  whatever  right  the  finder  may  have 
against  him  for  recompense,  for  the  care  and  expense  in  the 
keeping  and  preserving  of  the  property,  his  status  as  finder 
only,  does  not  give  him  any  lien  on  the  property.  Yet  if  such 
owner  offers  a  reward  to  him  who  will  return  the  property  a 
lien  thereon  is  thereby  created  to  the  extent  of  the  reward  of- 
fered. ' ' 

When  property  is  found  derelict,  as  a  ship  in  distress  or  that 
has  been  lost  within  the  tide  waters,  that  is,  within  the  ebb  and 
flow  of  the  tide,  whether  in  rivers  navigable  from  the  sea  or 
from  the  seas,  for  any  service  rendered  by  persons  other  than 
the  ship's  crew  for  the  purpose  of  saving  the  ship  or  its  cargo 
and  restoring  it  to  the  owner,  the  finder  or  persons  render- 
ing such  services  are  entitled  to  compensation  and  may  have 
a  lien  upon  the  property  for  the  amount.  Such  persons  are 
called  salvors  and  their  compensation  is  known  as  salvage.*- 

§  71.  Extinction  of  the  lien — Pajrment  or  tender. — The  basis 
of  the  bailee 's  lien  is  his  claim  for  reasonable  compensation ; 
it  therefore  follows  that  payment  of  that  amount  by  the  bailor, 
or  tender  of  the  amount  by  the  bailor  to  the  bailee,  would  ex- 
tinguish the  lien ;  and  if  the  bailee  upon  such  payment  or  tender 
should  still  refuse  to  deliver  the  property,  he  would  be  liable  in 
an  action  for  conversion.*^ 

§  72.  The  lien  may  be  waived — 

(a)  By  placing  the  refusal  to  deliver  the  property  when  de- 
manded upon  some  other  ground.  The  claim  which  supports  the 
bailee's  lien,  as  we  have  seen,  is  his  right  to  reasonable  compen- 
sation; and  he  will  not  be  allowed  to  retain  the  property  for 

Held  in  Wilson  v.  Gaysun,  8  Gill.  Co.,  55  Am.  Dec.  506,  and  editorial 

(Md.),  213,  that  the  reward  must  notes;    The    Edith    L.    Allan,    129 

be  certain  and  not  simply  the  of-  Fed.   888;    The  Dredge  No.  1,  137 

fer  of  a  liberal  reward.  Fed.  110;   Deslondes  v.  Wilson,  25 

42  Baker  v.  Hoag,  7  N.  Y.   555;  Am.  Dec.  187. 

Story  on  Bailm.  sec.  622,  Baker  v.  43  Rule   at   common   law   bailee 

Bates,    23    Am.    Dec.    678;    White-  can  only  hold  the  property  until 

well  V.  Wells,   24   Pick.    (Mass.),  payment   or   tender   of    payment. 

25;    Procter  v.   Adams,   113   Mass.  Burhfield    v.    Wheeler,    14    Allen 

376;   Forrester  v.  Huniata  Bridge  (Mass.),  139. 


58  ORDINARY  BAILMENTS.  [§   72. 

any  other  reason,  not  even  for  other  debts  due  and  owing  to 
him  from  the  bailor;  and  if  he  does  not  claim  to  retain  the 
property  as  security  for  his  reasonable  compensation  for  care 
of  it,  or  repairing  it,  or  performing  some  work  or  improve- 
ments upon  it  which  would  entitle  him  to  a  lien,  he  waives  his 
lien  and  renders  himself  liable  to  an  action  of  replevin  for  the 
recovery  of  the  specific  property  or  of  trover  for  its  value,  for 
he  is  guilty  of  conversion.** 

In  the  case  of  Hamilton  v.  McLaughlin  *^  the  court  says :  ''The 
only  lien  which  the  defendant  claims  is  for  keeping  the  horse 
after  notice  to  the  plaintiff  and  request  to  take  it  away. 
"Whether  the  evidence  was  sufficient  to  prove  that  he  had  such 
a  lien,  and  whether  the  instructions  asked  in  regard  to  it  were 
sound,  we  do  not  find  it  necessary  to  consider.  It  is  immate- 
rial that  the  defendant  had  a  lien  if  he  waived  it  at  the  time  of 
the  demand.  A  claim  to  hold  the  possession  of  the  property, 
and  a  refusal  to  deliver  it  on  demand  under  and  in  assertion 
of  a  right  other  than  that  given  by  the  lien,  would  be  evidence 
of  a  conversion."  The  principle  of  estoppel  may  also  be  in- 
voked in  such  a  case.  The  bailee,  having  placed  his  claim  upon 
some  other  and  different  reason  than  his  claim  for  compensa- 
tion, would  not  be  heard  to  make  a  different  claim  in  an  action 
against  him  to  recover  the  possession  or  value  of  the  property 
detained  by  him. 

(&)  The  bailee  may  also  waive  his  lien  by  an  agreement  to  give 
credit.  The  lien  of  the  bailee  is  further  based  upon  the  fact 
that  the  compensation  is  due  and  payable  at  the  present  time. 
If,  therefore,  the  time  of  payment  is  extended  by  the  giving 
of  credit,  the  lien  would  be  extinguished,  as  in  that  case  the 
compensation  would  be  an  indebtedness  against  the  bailor,  pay- 
able at  some  future  time  and  not  dependent  upon  the  lien,  and 
so  the  courts  hold  that  the  giving  of  credit  would  be  inconsist- 
ent with  the  holding  of  the  property  as  security  for  the  pay- 

<4When  bailee  asserts  different  ing  claim  for  amount  due  in  in- 
ground  for  holding  the  property,  solvent  proceedings,  if  lien  as- 
waives  lien.  Mexal  v.  Dearborn,  serted  when  claim  filed.  Kapp  & 
12  Gray,  Mass.  336;  Long  Island,  Co.  v.  McCaffrey,  178  111.  170,  52 
etc.  Co.  V.  Fitzpatrick,  18  Hun  (N.  N.  E.  898,  69  Am.  St.  290. 
Y.),  389;  Holderman  v.  Manier,  -ts  145  Mass.  20. 
104  Ind.   118.     Not  waived  by  fil- 


§   72.]  GENERAL  PRINCIPLES.  59' 

ment.*^  "The  general  principle  is  that  an  agreement  to  give 
credit  or  a  special  contract  for  a  particular  mode  of  payment  in- 
consistent with  the  lien  is  a  waiver  of  it.  The  operation  of  a  lien 
is  to  place  the  property  in  pledge  for  the  payment  of  the  debt; 
and  where  the  party  agrees  to  give  time  for  payment,  or  agrees 
to  receive  payment  in  a  particular  mode  inconsistent  with  the 
existence  of  such  a  pledge,  it  is  evidence,  if  nothing  appears  to 
the  contrary,  that  he  did  not  intend  to  rely  upon  the  pledge  of 
the  goods  in  relation  to  which  the  debt  arose  to  secure  the  pay- 
ment. "^^ 

And  the  lien  of  the  bailee  will  be  considered  as  waived — • 
(c)  When  he  voluntarily  parts  with  the  possession  of  the  prop- 
erty. It  has  already  been  noticed  that  one  of  the  requisites  of 
the  lien  of  the  bailee  is  the  possession  of  the  goods  upon  which 
he  asserts  his  lien.  Possession  being  necessary,  it  follows  that 
if  the  bailee  should  voluntarily  part  with  it  and  allow  the  prop- 
erty to  go  beyond  his  control,  his  lien  would  be  lost,  and  it 
would  make  no  difference  if  the  goods  were  delivered  to  a  third 
party  with  an  agreement  that  the  lien  was  to  continue,  unless, 
perhaps,  the  goods  were  placed  in  the  hands  of  a  third  party 
who  was  under  the  control  of  the  bailee,  and  so  a  wrongful  sale 
or  pledge  of  the  property  would  destroy  the  lien  of  the  bailee. 
It  has,  however,  been  held  that  a  lien  acquired  by  a  partnership 
will  not  be  lost  by  a  dissolution  of  the  partnership,  or  by  the 
assignment  of  the  interest  of  one  of  the  partners  to  the  other. 
This  does  not  so  much  depend  upon  the  fact  that  the  bailee 
has  sold  or  pledged  the  property;  the  decisive  matter  is  that 
he  has  parted  with  the  possession.  "The  conduct  of  the  bailee 
in  parting  with  his  possession  is  inconsistent  with  the  preserva- 
tion of  his  lien,  and  where  that  is  proved,  the  presumption  is 
that  he  has  waived  or  abandoned  it,  unless  his  conduct  in  so 
doing  is  satisfactorily  explained."*®  And  there  could  be  no 
explanation  that  would  avoid  the  extinguishment  of  the  lien  if 
the  rights  of  third  parties  had  intervened. 

46  McMaster      v.      Merrick,      41  10   Gray    (Mass),   352;    Kittsridge 

Mich.   505.  V.  Freeman,  48  Vt.  62.     Retention 

4T  Tucker  v.  Taylor,  53  Ind.  93;  of  possession  need  not  be  by  bailee 

Stoddard   Mfg.   Co.   v.   Huntley,   8  personally,  possession  by  another 

N.  H.  441.  under   his   authority   and   control 

48  Robinson  v.  Larrabel,  63  Me.  sufficient.     McFarland  v.  Wheeler, 

116;     Morse    v.    Androscoggin    R.  26  Wend.   467. 
Co.,  39  Me.  285;  Stickney  v.  Allen, 


•60  ORDINAEY  BAILMENTS.  [§    75. 

§  73.  Lien  once  lost  cannot  be  revived. — The  lien  is  supported 
and  rests  upon  the  fact  of  continued  possession ;  that  the  prop- 
erty is  retained  in  the  hands  of  the  bailee  as  security  for  his 
compensation.  This  possession  once  relinquished,  the  lien  is 
necessarily  at  an  end,  and  it  could  not  be  revived  by  repossess- 
ing himself  of  the  property.  The  parting  with  the  possession 
raises  the  presumption  that  he  thereby  waives  or  abandons  his 
lien."  If,  however,  the  bailor  should  obtain  possession  of  the 
property  by  fraud  or  force,  or  by  any  wrongful  recovery  of 
the  same,  the  bailee  would  not  forfeit  his  lien,  for  the  law  would 
not  permit  the  bailor  to  take  advantage  of  his  own  wrong. 

In  Bruley  v.  Boss  et  al.,^^  it  was  held  that  where  property  had 
been  pledged  as  security  for  a  debt  and  the  pledgor  obtained 
possession  thereof  for  a  special  purpose,  with  the  consent  of  the 
pledgee,  and  thereupon  took  the  property  out  of  the  county 
the  pledgee  could  not  be  deemed  to  have  released  his  lien  there- 
in, if  the  evidence  showed  that  the  pledgor  obtained  the  posses- 
sion of  the  thing  pledged  with  a  felonious  design  to  deprive  the 
pledgee  of  his  security. 

And  in  Walcott  v.  Keith  ^^  it  was  held  that  when  possession, 
so  essential  not  only  to  the  creation  but  also  to  the  continuance 
of  the  lien  created,  is  obtained  by  the  wrongful  act  of  the 
pledgor  and  without  the  assent  of  the  pledgee,  it  will  not  work 
a  forfeiture  of  the  lien,  nor  would  it  defeat  the  bailee's  right  of 
action  to  recover  damages  for  an  injury  to  or  conversion  of  the 
pledge. 

§  74.  Right  of  the  bailor  to  compensation. — The  right  of  the 
bailor  to  compensation  may  arise  from  express  contract  or  by 
implication.  If  the  circumstances  were  such  that  it  would  rea- 
sonably be  presumed  that  the  bailee  was  to  pay  the  bailor  com- 
pensation for  the  use  of  the  property,  a  contract  to  make  such 
payment  would  arise  by  implication;  and  it  has  been  held  that 
the  fact  that  the  bailment  was  made  under  the  mutual  expecta- 
tion that  the  bailee  would  purchase  the  chattel  did  not  raise  a 
presumption  that  the  use  was  gratuitously  given.^^ 

§  75.  Enforcement  of  the  lien  of  bailee. — At  common  law  the 
bailee  cannot  enforce  or  foreclose  his  lien  by  a  sale  of  the  prop- 
erty; he  only  has  the  right  to  hold  it  as  security  for  his  debt 

49  Ibid.  52  Rider  v.  Union  India  Rubber 

50  57  Iowa,  651.  Co.,  28  N.  J.  379. 

51  22  N.  H.  196. 


§    74.]  GENERAL  PRINCIPLES.  61 

against  the  bailor.  This  has,  however,  been  regulated  in  most 
of  the  states  by  statute  permitting  a  public  sale  of  the  property, 
after  proper  notice  of  the  time  and  place,  to  satisfy  the  amount 
of  the  lien.^^ 

A  bailment  lien  is  generally  subject  to  a  record  lien,  as  for 
example,  the  lien  of  a  bailee  as  a  general  rule  is  subject  to  a 
recorded  mortgage  or  a  mortgage  on  file  in  conformity  with 
a  statute  making  such  filing  notice  to  the  public.  But  when  the 
mortgage  is  given  on  the  property  while  the  labor  is  being  per- 
formed, the  bailee's  lien  will  take  priority,  for  the  reason  that 
he  has  not  parted  with  the  possession  of  the  property,  and  his 
possession  is  notice  to  the  world  of  his  rights  in  it. 

53  In    Mill    Creek    Township    v.  protect     his     lien.     Davidson     v. 

Stock  Yards,   27  Ohio   St.   435,   it  Fankuchen,    88     N.    Y.     S.     196; 

was  held  that  if  the  property  is  Bissell   v.    Pierce,   28   N.   Y.   252; 

perishable    and    liable    to    be    en-  Montreal  Bank  v.  J.  E.  Potts,  etc. 

tirely  lost,  and  the  owner  is  un-  Co.,  91  Mich.  342,  51  N.  W.  890. 
known,  the  bailee  may  sell  it  to 


CHAPTER  V. 

TERMINATION  OF  THE  BAILMENT. 


76.  The  several  ways. 

77.  By    expiration    of    the    time 

for    which    the    property 
was  bailed. 

78.  By    reason    of    the    accom- 

plishment of  the  object. 

79.  By  act  of  parties. 


80.  By  operation  of  law. 

81.  By  destruction  of  the  bailed 

property. 

82.  The  death  of  the  bailee. 

83.  By  incompetency  of  the  par- 

ties. 


§  76.  The  several  ways.  The  several  circumstances  and  con- 
ditions that  will  terminate  the  bailment  relation  have  been  more 
or  less  noticed  in  the  previous  pages;  our  intention  now  is  to 
classify  and  briefly  discuss  them. 

Bailments  may  be  terminated  in  the  following  ways : 

1st.  By  expiration  of  the  time  for  which  the  property  was 
bailed. 

2d.  By  reason  of  the  accomplishment  of  the  object. 
3d.  By  acts  of  the  parties. 

4th.  By  operation  of  law. 

5th.  By  destruction  of  the  property. 

6th.  If  bailment  is  gratuitous,  on  death  of  bailee. 

7th.  By  incompetency  of  the  parties. 

§  77.  (1st)  By  expiration  of  the  time  for  which  the  property 
was  bailed. — This  needs  no  discussion.  If  the  contract  of  bail- 
ment is  limited  as  to  time,  it  goes  without  saying  that  when 
that  time  expires  the  bailment  will  be  at  an  end,  there  being 
no  longer  any  agreement,  express  or  implied,  to  support  the 
bailment;  provided,  always,  the  parties  act  upon  it  by  a  rede- 
livery of  the  property,  or  a  sale,  or  a  bailment  of  it.^ 

§  78.  (2d)  By  reason  of  the  accomplishment  of  the  object. — 
When  the  object  of  the  bailment  has  been  accomplished  there 
is  no  longer  any  reason  for  continuing  the  relation,  and  either 


1  New  York,  etc.  R.  Co.  v.  New 
Jersey,  etc.  Co.,  6  N.  J.  Law,  338, 
38   AU.   828;    Cobb  v.   Wallace,   5 


Coldw.  (Tenn.),    539,  98  Am.  Dec. 
435. 


§    79.]  TERMINATION  OF  BAILMENT.  63 

jjarty  can  bring  it  to  an  end ;  the  bailor  by  demanding  the 
return  of  the  bailed  goods,  or  the  bailee  by  tendering  back  the 
chattels  in  his  possession  as  bailee.  The  contract  would  be  ex- 
ecuted and  the  relation  of  bailor  and  bailee  could  at  once  be 
ended.  What  we  have  said  is,  of  course,  presuming  that  the 
parties  have  no  legal  excuse  for  not  redelivering  the  property. 
"It  is  obvious  that  a  bailee,  whatever  the  character  of  the  bail- 
ment may  be,  when  its  purpose  has  been  fully  satisfied  and 
performed,  is  bound,  upon  request,  to  redeliver  the  thing  bailed 
to  its  lawful  owner.  This  is  necessarily  implied  in  all  cases 
from  the  nature  of  the  contract  of  bailment.  The  authorities 
are  uniform  to  the  effect  that  such  redelivery  may  be  excused 
in  the  case  of  a  bailment,  mutually  beneficial  to  both  parties, 
by  proof  that  the  deposit  has  been  lost  or  destroyed  without 
negligence,  or  want  of  such  care  on  the  part  of  a  bailee  as  pru- 
dent men  under  similar  circumstances  commonly  take  of  their 
own  goods.  In  case  of  gratuitous  bailments,  however,  the  bailee 
is  liable  only  when  chargeable  with  gross  neglect.  It  necessarily 
follows  from  the  nature  of  the  obligation  and  the  refusal  to 
return  the  property,  that  the  burden  of  showing  the  circum- 
stances of  the  loss  rests  upon  the  bailee,  and,  unless  the  evi- 
dence shows  the  exercise  of  due  care  by  him  according  to  the 
nature  of  the  bailment,  he  will  be  held  responsible  for  the  breach 
of  his  contract  to  return  the  property  bailed, ' '  ^ 
§  79.  (3d)  By  act  of  parties.— 

(a)  On  demand  of  bailor.  If  the  bailment  is  gratuitous,  as  a 
general  rule  the  bailee  has  no  right  to  the  possession  of  the 
bailed  property  as  against  the  bailor.  In  such  case  there  is  no 
consideration  moving  between  the  parties  upon  which  a  con- 
tract for  use  or  possession  can  be  implied  for  a  greater  time 
than  the  bailor  may  choose  to  allow  the  bailee  to  remain  in  the 
use  or  possession  of  the  property.  But  while  it  is  true  that  in 
such  kind  of  bailments  the  bailor  may  revoke  the  bailment  at 
his  will,  he  cannot  be  unreasonable ;  as,  for  example,  when  the 
object  of  the  bailment  is  but  partially  accomplished  and  to  at 
once  terminate  it  would  be  to  impose  upon  the  bailee  an  injury 
more  or  less  serious,  while  to  continue  it  for  a  reasonable  time 
would  be  no  damage  to  the  bailor.  As  where  one  had  borrowed 
an  article  for  use,  a  commodatum,  and  in  the  midst  of  its  use 

zOnderkirk  v.  C.  N.  Bank,  119      v.  Schley,  58  Ga.  369;  Morse  v.  An- 
N.  Y.  263;  Chattahoochee  N.  Bank      droscoggin  R.  Co.,  39  Me.  285. 


64  ORDINARY  BAILMENTS.  [§    79. 

its  return  was  demanded,  and  to  comply  with  the  demand 
would  result  in  damage  and  great  inconvenience  to  the  bailee 
and  no  particular  benefit  to  the  bailor,  refusal  of  compliance  by 
the  bailee  would  not  terminate  the  bailment  nor  result  in  a  con- 
version of  the  property.^ 

(6)  Bailor  may  terminate,  when.  And  when  by  the  agree- 
ment creating  the  relation  no  time  is  fixed  for  the  accomplish- 
ment of  the  bailment,  the  bailor  may  terminate  by  a  demand 
of  the  property,  and  if  the  bailee  does  not  return  it  within  a 
reasonable  time  the  bailment  will  be  considered  at  an  end. 
What  under  all  the  circumstances  would  be  a  reasonable  time 
is  a  question  for  the  jury.* 

(c)  Where  the  bailee  agrees  to  return  the  property  in  a  fixed 
time  and  fails,  the  bailor,  for  the  purpose  of  terminating  the 
relation,  need  not  make  any  demand;  the  failure  to  so  rede- 
liver the  property  terminates  the  bailment,  and  the  bailee  will 
be  considered  as  having  converted  the  property.^ 

{d)  When  dy  agreement  the  bailor  is  to  return  the  bailed  prop- 
erty at  a  particular  place  and  fails.  If  by  the  agreement  the 
bailor  is  to  return  the  subject  of  the  bailment  at  a  particular 
place,  and  makes  a  general  refusal  to  redeliver  the  goods,  the 
bailor  may  consider  the  bailment  relation  at  an  end,  and  is  en- 
titled to  at  once  proceed  to  recover  the  property  as  though  it 
had  been  converted  by  the  bailee.  And  the  fact  that  a  demand 
for  the  property  was  made  at  a  different  place  will  make  no 
difference.^ 

(e)  WJien  declaration  of  ownership  by  bailee  not  enough.  It 
has  been  held,  however,  that  a  declaration  made  by  the  bailee 
to  the  bailor  that  he  is  the  owner  of  the  goods  would  not  be 
sufficient  upon  which  to  found  an  action  by  the  bailor  for  con- 
version, unless  it  were  coupled  with  some  action  showing  a  de- 
termination to  deny  the  bailor's  title  to  the  property;  or  some 
unequivocal  act  indicating  that  he  is  holding  the  property  ad- 
verse to  the  bailor.'' 

(/)  By  sale,  pledge,  or  act  of  ownership  by  bailee.     If  the 

s  Miller  v.  Dayton,  94  Minn.  340,  7  Green  v.  Harris,  3  N.  C.  210; 

102  N.  W.  862.  Knight  v.  Bell,  22  Ala.  198;   Dun- 

4  Cobb  V.  Wallace,  5  Coldw.  539.  lap  v.    Gleason,   16   Mich.   158,   93 

5  Lay  V.  Lawson,  23  Ala.  377;  Am.  Dec.  231;  Johnson  v.  White- 
Clapp  V.  Nelson,  12  Tex.  370.  more,  27  Mich.  463;   Thompson  v. 

6  See  note  to  Reizentein  v.  Moesta,  27  Mich.  182;  Partridge  v. 
Marquardt,  1  L.  R.  A.  318.  Philbrick,  60  N.  H.  556. 


§   81.]  TERMINATION  OF  BAILMENT.  65 

bailee  should,  exercise  any  act  of  ownership  adverse  to  the 
bailor,  as  by  sale  or  pledge  of  the  bailed  property,  the  bailor 
can  at  once  terminate  the  bailment  and  demand  and  recover 
the  possession  of  his  property.^ 

{g)  Abuse  and  injury  of  property.  It  is  incumbent  upon  the 
bailee  to  exercise  good  faith  and  deal  fairly  with  the  bailor; 
and  so  it  follows  that  for  a  violation  of  this  duty  the  bailor  can 
terminate  the  bailment  relation.  It  has  been  held,  for  example, 
that  "one  who  hires  a  horse  is  liable  in  trover  for  wilful  and 
immoderate  fast  driving  by  which  the  horse  is  injured. ' ' " 

(/i)  The  bailee  may  terminate  the  bailment.  In  case  of  gratui- 
tous bailments  for  the  sole  benefit  of  the  bailee  (a  commoda- 
tum),  the  bailee  may  terminate  the  bailment  at  any  time  by 
returning  the  bailed  property  to  the  bailor.  And  the  deposit- 
ary in  a  depositum  bailment  may,  upon  reasonable  notice  to  the 
bailor,  terminate  the  bailment  by  redelivering  the  deposit.^" 

(i)  If  bailment  for  benefit  of  both  parties.  In  such  kind  of 
bailments  there  is  a  contract  supported  by  a  consideration,  and, 
unless  there  has  been  some  breach  of  the  terms  of  the  contract, 
the  bailment  cannot  be  terminated  by  the  act  of  one  of  the  par- 
ties ;  but  bad  faith  or  fraud,  dishonest  dealing,  or  failure  to  exe- 
cute the  trust,  or  for  the  causes  already  enumerated — as,  for  ex- 
ample, an  assumed  sale  or  pledge  of  the  property  bailed  by  the 
bailee,  an  unauthorized  use  of  the  property  resulting  in  its 
injury,  or  any  unwarranted  action  inconsistent  with  the  con- 
tract of  bailment — would  furnish  good  cause  for  either  party 
injured  to  terminate  the  bailment;  but  in  such  cases  there 
should  be  notice  given,  by  the  party  seeking  to  so  terminate  it, 
to  the  other  party,  and  such  notice  should  be  reasonable. 

§  80.  (4th)  By  operation  of  law. — As,  for  example,  when  the 
parties  consent  to  the  termination  of  the  bailment,  or  when  the 
bailee,  by  purchase  or  otherwise,  becomes  the  owner  of  the  sub- 
ject of  the  bailment. 

§  81.  (5th)  By  destruction  of  the  bailed  property. — When 
the  subject  of  the  bailment  is  destroyed  there  is  no  longer  any- 

8  story,  Bailments,  sec.  413;  Vt.  432;  Crump  v.  Mitchell,  34 
Sargent  v.  Gile,  8  N.  H.  325;  Baily      Miss.  449. 

V.    Colby,    34   N.    H.    29;    King   v.  a  Wentworth  v.  McDuffie,  48  N. 

Bates,  57  N.  H.  446;  Swift  v.  Mos-       H.  402. 

ley,  10  Vt.  208;  Dunham  v.  Lee,  24  lo  Roulston  v.  McClelland,  2   E. 

D.  Smith   (N.  Y.),  60. 


66  ORDINARY  BAILMENTS.  [§   82. 

tiling  upon  which  the  bailment  can  act,  and  it  must  of  necessity'' 
be  terminated.  The  liabilities  of  the  parties,  however,  would 
be  subject  to  the  rules  heretofore  discussed.^^ 

§  82.  (6th)  The  death  of  the  bailee. — As  a  general  rule,  a  bail- 
ment for  the  sole  benefit  of  the  bailor,  would  terminate  at  the 
death  of  either  party  if  the  bailment  is  entirely  executory.  And 
such  a  bailment  when  performance  of  it  has  been  entered  upon 
is  one  that  is  generally  subject  to  the  pleasure  of  either  pajty, 
and  may  be  terminated  at  any  time,  at  least  upon  reasonable 
notice ;  for  there  is  no  binding  obligation  upon  the  parties  that 
either  could  enforce  against  the  will  of  the  other  to  terminate 
it,  nor  would  the  death  of  either  enlarge  or  limit  the  legal 
rights  of  the  survivor  or  of  the  legal  representatives  of  the 
deceased  party. 

If  the  bailment  be  for  the  sole  benefit  of  the  bailee,  resting 
as  such  a  relation  does,  upon  conferring  special  favor  or  per- 
sonal benefit ;  upon  the  death  of  the  bailee,  for  whose  benefit 
or  favor  the  relation  was  created  and  existed,  the  bailment 
would  terminate,  for  the  object  of  it  would  cease,  and  the  con- 
sideration supporting  it  is  not  such  that  it  would  sustain  an  en- 
forced continuance  against  the  will  of  the  bailor  to  terminate 
the  relation. ^^ 

If  the  bailment  be  one  for  the  mutual  benefit  of  the  parties, 
which  does  not  depend  upon  the  personal  or  professional  skill 
of  the  bailee,  but  which  could  be  carried  to  completion  by  the 
personal  representation  of  the  deceased;  as,  for  example,  a 
bailment  of  material  from  which  manufactured  articles  were 
to  be  produced,  such  a  bailment  would  not  terminate  at  the 
death  of  the  bailee.  Such  a  bailment  contract  would  be  an 
asset  of  the  estate  of  the  bailee,  and  a  legal  right  of  the  bailor 
that  could  be  enforced  by  an  action  for  specific  performance. 

11  New  York,  etc.  R.  Co.  v.  New  the  owner,  the  bailor,  on  demand, 
Jersey,  etc.  R.  Co.,  60  N.  J.  L.  338,  insisting  that  he  should  deliver  it 
38  Atl.  828.  to  the  administrator  of  the  estate, 

12  Farrow  v.  Bragg,  30  Ala.  361;  the  court  held  that  replevin  for 
Morris  v.  Lowe,  97  Tenn.  243,  46  the  property  should  be  sustained, 
S.  W.  1098;  Blount  v.Hamey,  43  that  the  bailment  was  gratuitous 
Mo.  App.  644.  In  Smiley  v.  Allen,  and  the  owner  might  terminate  it 
13  Allen  (Mass.),  465,  where  a  at  any  time,  and  that  the  death 
coroner  found  the  subject  of  the  of  the  bailee  did  not  alter  his 
bailment  on  the  dead  body  of  the  rigut  in  that  regard. 

bailee  and  refused  to  deliver  it  to 


§   83.]  TERMINATION  OF  BAILMENT.  67 

The  same  or  a  similar  doctrine  exists  and  governs  in  ease  of 
personal  contracts,  upon  the  death  of  one  of  the  parties.  As 
was  said  by  the  court  in  a  case  where  a  heating  apparatus  was 
contracted  for  during  the  life  time  of  decedent,  but  mostly  set 
up  after  his  death:  "There  can  be  no  doubt  that  the  estate  of 
the  deceased  person  is  bound  by  his  contracts  in  all  respects, 
if  they  are  carried  out.  If  this  work  had  not  been  done  ac- 
cording to  contract  it  would  have  raised  a  very  different  ques- 
tion, whether  an  implied  contract  could  be  raised  on  a  quantum 
meruit  which  could  bind  the  estate.  "^^ 

In  Banibrich  v.  Webster  Ass'n  ^*  it  was  held  that  a  building 
contract,  not  Calling  for  services  personal  to  the  contractor, 
does  not  abate  by  his  death,  and  his  executor  has  the  power  to 
complete  it,  and  realize  the  money  for  the  estate  to  become  due 
on  its  completion,  and  save  the  forfeiture  of  the  bond  of  the 
deceased  contractor.  And  in  Fulton  v.  Davidson  Nat.  Bank  " 
where  stock  was  pledged  by  the  deceased  in  his  life  time  to 
secure  a  debt,  it  was  held  that  the  pledgee  could  retain  pos- 
session of  the  pledge  and  enforce  the  payments  of  dividends  so 
long  as  his  claim  is  unsatisfied.  The  principal  is  the  same  as 
that  governing  in  agency  upon  the  death  of  the  principal  which 
as  a  general  rule  terminates  the  relation,  except  where  the 
agent's  authority  is  coupled  with  an  interest,  in  which  case  he 
may  continue  until  the  object  of  the  agency  is  completed. 

And  so  if  the  relation  is  a  mutual  benefit  bailment,  not  rest- 
ing upon  personal  or  professional  skill  of  the  bailee,  which  has 
been  partially  performed,  there  is  a  property  interest  in  such 
a  relation  which  upon  the  death  of  either  party  to  the  bailment, 
the  survivor  has  the  right  to  have  protected,  and  the  represen- 
tatives of  the  deceased  party  may  save  to  the  estate.^*' 

§  83.  (7th)  By  incompetency  of  the  parties. — If  either  party 
should  become  incompetent  to  the  extent  that  it  would  render 
him  unfit  to  carry  out  the  object  of  the  bailment,  the  bailment 


13  McKeown,  Ex'r  v.  Harvey,  40  the  death  of  the  bailee  terminated 

Mich.  226,  227;  Marvel  v.  Phillips  the  relation, 

et  al.  Ex'rs,  162  Mass.  399,  26  L.  ii  53  Mo.  App.  225. 

R.  A.   416,  was  a  mutual  benefit  is  26  Texas  Civ.  App.  115,  62  S. 

bailment    where    the    court    held  W.  84. 

that  the  undertakings  were  chiefly  is  Hunt  v.  Rousmanier's  Adm'rs, 

personal   in    their   character   and  8  Wheat.  (U.  S.),  174;  McCartney 

V.  Carbine,  108  111.  App.  282. 


68  ORDINARY  BAILMENTS.  [§   83. 

wonld  terminate;  as,  for  example,  insanity  of  the  bailee,  or 
habitual  drunkenness,  if  to  the  extent  that  it  would  affect  the 
rights  or  duties  of  the  parties.  The  determination  of  this  ques- 
tion would  of  course  depend  largely  upon  the  nature  of  the 
bailment  and  the  condition  of  the  parties.  It  would  be  a  ques- 
tion of  fact  for  the  jury  under  proper  instructions  from  the 
court.  In  case  of  a  mandate,  generally  any  change  of  the  par- 
ties, as  by  marriage,"  or  appointment  of  a  guardian,^^  and  it 
has  been  held  that  bankruptcy  of  either  party,  would  terminate 
the  bailment.^* 

17  Story,  Agency,  488-500;   Story,  i»  Parker  v.  Smith,  16  East,  382 ; 
Bailment,  sec.  206.                                 Minet  v.  Forester,  4  Taunt.   541; 

18  Story,  Bailment,  481.  Ex  parte  Newhall,  2  Story,  360. 


CHAPTER  VI. 

LIABILITY  OF  THE  BAILOR  AND  THE  BAILEE  WHEN  THE  BAIL- 
MENT IS  FOR  THE  SOLE  BENEFIT  OF  THE  BAILOR. 


§  84.  These     bailments     of     two 
kinds. 

85.  Mandatuvi. 

86.  Depositum. 

87.  Use  of  the  deposit. 

88.  Special,  not  general  deposit. 

89.  Qttasi-deposits. 

90.  Subject  limited. 

91.  Distinction   between   deposi- 

tum and  mandatum. 

92.  A  contract  relation. 

93.  The  bailee's  liability. 

94.  Authorities  not  entirely  har- 

monius. 


§  95.  For  the  sole  benefit  of  the 
bailor. 

96.  Even  indirect  benefit  would 

change   the   class   of  bail- 
ment. 

97.  Notice  of  facts  requiring  spe- 

cial care. 

98.  Failure  to  obey   instruction 

or  the  terms  of  the  bail- 
ment. 

99.  Termination  of  the  relation 

and  bailor's  remedies. 


§  84.  These  bailments  of  two  kinds. — Bailments  of  this  class 
are  of  two  kinds:  (1)  Mandatum  and  (2)  Depositum. 

§  85.  (1)  Mandatum. — A  delivery  of  goods  for  the  purpose 
of  having  some  service,  work  or  labor  performed  upon  or  about 
them  by  the  bailee  without  recompense.^  The  bailor  is  called 
the  mandator  and  the  bailee  the  mandatary. 

Mandatum  was  a  word  employed  by  Lord  Holt  in  the  cele- 
brated case  of  Coggs  v.  Bernard.^  Its  applicability  has,  how- 
ever, by  some  of  the  authors  been  questioned.  It  is  said  to  be 
"a  term  apparently  derived  from  the  fiction  of  giving  one's 
right  hand  as  symbolical  of  delivery  to  another  of  authority  to 
act;"  it  meant  simply  to  constitute  a  gratuitous  agency  some- 
what broader  than  we  use  in  the  law  of  bailments,  if  indeed  it 
is  applicable  at  all.  An  unpaid  carrier  was  said  to  be  a  man- 
datary, and  so  was  an  unpaid  oral  messenger.  It  was  not  con- 
fined to  personalty,  nor  was  it  necessarily  occupied  with  the 
property  at  all;  but  in  the  sense  we  use  it,  it  is  the  gratuitous 
doing  of  some  act  upon  or  about  the  subject  of  the  bailment 
by  the  bailee.    The  bailment  of  a  thing  upon  which  the  bailee 


1  Story's  Bailments,  sec.  137. 


2  2  Ld.  Raymond,  909. 


70  ORDINARY  BAILMENTS.  [§    87. 

is  to  do  some  work  gratuitously,  and  return  it  to  the  bailor,  or 
gratuitously  to  carry  the  thing  from  place  to  place,  seems  to 
cover  the  more  modern  idea  of  this  kind  of  a  bailment.  Chan- 
cellor Kent  defines  it  to  be,  "when  one  undertakes  without 
recompense  to  do  some  act  for  the  other  in  respect  to  the  thing 
bailed.  "3 

To  create  a  mandate,  three  things  are  necessary.  First,  that 
there  should  exist  something  that  should  be  the  subject  of  the 
mandate,  second,  that  it  should  be  done  gratuitously;  and 
third,  that  the  parties  should  voluntarily  intend  to  enter  into 
the  contract.  There  is  no  particular  form  of  entering  into  the 
contract.  It  may  be  verbal  or  in  writing,  or  by  implication,* 
and,  as  we  have  seen,  the  contract  may  be  terminated  in  several 
ways. 

§  86.  (2)  Depositum. — Usually  defined  to  be  "a  naked  bail- 
ment of  goods  to  be  kept  by  the  bailee  for  the  bailor  without 
reward,  and  returned  when  he  shall  require  it.  "^  Pothier  de- 
fines it  to  be  a  "contract  by  which  one  of  the  contracting  par- 
ties gives  a  thing  to  another  to  keep,  who  is  to  do  so  gratni- 
tousl}'',  and  obliges  himself  to  return  it  when  he  shall  be  re- 
quested." The  depositary  of  a  special  deposit  is  bound  to  re- 
turn the  specific  article  deposited,  as  is  said,  to  return  the  thing 
in  individuo,  and  in  the  same  state  in  which  it  was  received. 
And  not  only  is  he  bound  to  return  the  individual  thing  de- 
posited, but  as  well  any  increase  or  profits  that  may  have  ac- 
crued from  it.  As,  for  example,  if  an  animal,  any  offspring 
that  the  animal  may  have  born ;  if  bonds,  any  interest  that  may 
have  accumulated  from  it.^ 

§  87.  Use  of  the  deposit. — And  further,  by  way  of  bearing 
on  the  definition,  it  may  be  said  that  as  a  general  rule  the  de- 
positary has  no  right  to  use  the  thing  deposited  with  him, 
qualified,  however,  by  the  rules  already  discussed ;  if  the  use  of 
the  thing  is  necessary  to  its  preservation,  it  would  be  his  duty 
to  use  it.  As  to  this  it  has  been  said  that  "the  best  general 
rule  on  the  subject  is  to  consider  whether  there  may  or  may 
not  be  an  implied  consent  on  the  part  of  the  owner  to  the  use. 
If  the  use  would  be  for  the  benefit  of  the  deposit,  the  assent  of 
the  owner  may  well  be  presumed ;  if  the  use  would  be  indiffer- 

3  2  Kent's  Com.  443.  &  Jones,     Bailments,      36,      117; 

*  Story's  Bailments,  sec.  160.  Story's  Bailments,  sec.  41. 

6  Story's  Bailments,  sec.  99. 


§   92.]  FOR  SOLE  BENEFIT  OF  BAILOR.  71 

ent,  and  other  circumstances  do  not  incline  either  way,  the  use 
may  be  deemed  not  allowable.'^ 

§  88.  Special,  not  general  deposit. — From  what  has  been  said 
it  will  be  seen  that  the  depositum  refers  to  what  is  deemed  and 
generally  called  a  specific  deposit,  as  the  depositing  of  spe- 
cial money  in  a  bank  and  not  to  the  deposit  of  money  or  prop- 
erty that  may  be  returned  in  like  kind  and  of  equal  quantity 
and  value;  as  a  general  deposit  of  money  in  a  bank,  which  may 
be  paid  back  in  any  other  money  of  equal  value. 

§  89.  Quasi-deposi'ts. — The  so-called  quasi-deposit  may  also 
be  included  here.  As  where  one  comes  lawfully  into  the  pos- 
session of  the  thing  by  finding.  The  contract  relation  is  at  once 
implied  if  he  takes  the  thing  into  his  possession.  In  a  sense  the 
finder  is  not  a  voluntary  depositary,  and  yet  he  is  if  he  takes 
possession  and  control  of  the  found  property,  and  he  will  be 
governed  by  the  same  rules  of  law  as  to  liability. 

§  90.  Subject  limited. — It  may  be  said,  then,  that  in  discuss- 
ing the  liability  of  the  depositary  in  this  class  of  bailments, 
we  are  limited  to  the  possessor  of  special  deposits  where  the 
specific  property  or  thing  is  to  be  returned,  and  to  that  which 
has  been  called  ^Masi-deposit. 

§  91.  Distinction  between  depositum  and  mandatum. — The 
difference  between  a  deposit  and  a  mandate  is  apparent  from 
what  has  been  said.  Both  are  gratuitous  bailments,  and  so  far 
as  care  and  diligence  are  required,  or  liability  for  negligence 
created,  both  stand  upon  the  same  footing,  as  a  general  rule; 
yet  in  the  latter,  perhaps,  the  circumstances  might  involve  a 
relatively  different  diligence,  and  render  bailee  liable  for  a 
relatively  different  negligence,  because  of  the  additional  duties 
required.  A  deposit,  as  we  have  seen,  is  a  naked  gratuitous 
keeping  of  the  thing — a  gratuitous  care  and  custody  of  the 
bailed  property  by  the  bailee  for  the  sole  benefit  of  the  bailor, 
and  a  returning  of  the  specific  thing ;  while  a  mandate  is  more 
than  this:  it  involves  not  only  custody  and  care  of  the  thing, 
but  it  involves,  as  well,  labor  and  service  upon  or  about  the  thing. 
Custody,  as  has  been  said  in  case  of  a  mandate,  ' '  is  merely  acces- 
sorial." 

§  92.  A  contract  relation. — Whether  mandatum  or  depositum, 
the  relation  is  created  by  contract  either  express  or  implied. 
And  so  the  parties  must  be  governed  entirely  by  the  contract  by 

7  Jones,  Bailments,  80,  81;  Story's  Bailments,  sec.  90. 


72  ORDINARY  BAILMENTS.  [§    93. 

which  the  relation  is  created,  as  to  their  care  and  custody,  in 
performing  the  service  as  well  as  returning  the  property,  and 
as  to  their  liability  in  case  of  failure  to  carry  out  the  contract- 
ual relation.  And  this  applies  as  well  to  property  that  is  found  j 
for  while  it  is  true  that  the  finder  is  created  a  bailee  by  opera- 
tion of  law  in  such  case,  the  moment  he  takes  the  thing  found 
into  his  possession,  there  is  an  implied  contract  that  fixes  his 
status  and  regulates  his  liability. 

§  93.  The  bailee's  liability. — The  bailment  is  for  the  sole 
benefit  of  the  bailor,  and  so,  following  the  general  rule  of  lia- 
bility generally  conceded,  the  bailee  is  required  to  exercise 
slight  diligence,  and  is  liable  only  for  gross  negligence.  It  may 
be  somewhat  difficult  in  all  cases  to  apply  this  rule,  for  the 
reason  that  it  is  often  difficult  to  determine  just  what  slight 
diligence  or  gross  negligence  is.  No  fixed  rule  can  be  applied: 
the  circumstances  of  the  particular  case  can  only  settle  the 
question;  but  with  a  single  exception,  which  will  be  hereinafter 
noted,  it  is  a  question  of  fact  for  the  jury  to  determine. 

It  has  been  held  that  "a  mandatary,  or  bailee  who  under- 
takes without  reward  to  take  care  of  the  pledge,  or  perform 
any  duty  or  labor,  is  required  to  use  in  its  performance  such 
care  as  men  of  common  prudence,  however  inattentive,  ordi- 
narily take  of  their  own  affairs,  and  they  will  be  liable  only 
for  bad  faith,  or  gross  negligence,  which  is  an  omission  of  that 
degree  of  care. ' '  ^  And  in  the  supreme  court  of  the  United 
States  in  a  comparatively  recent  case  it  was  said:  "Such 
bailees  are  bound  to  exercise  such  reasonable  care  as  men  of 
common  prudence  usually  bestow  for  the  protection  of  their 
own  property  of  a  similar  character;  and  that  the  exercise  of 
reasonable  care  is  in  all  such  cases  the  dictates  of  good  faith; 
and  that  the  care  usually  and  generally  deemed  necessary  in 
the  community  for  the  security  of  similar  property  under  like 
conditions  would  be  required  of  the  bailee  in  such  cases,  but 
nothing  more."  Gross  negligence,  as  applied  to  gratuitous  bail- 
ees, is  defined  in  the  same  case  to  be  "nothing  more  than  a  fail- 
ure to  bestow  the  care  which  the  property  in  its  situation  de- 
mands;"  and  the   court  say  further:    "The   omission  of  the 

8  Kelly    V.    Kahn,    17    111.    170;  288,  58  Atl.  248;   Smith  v.  Library 

King  V.  Exchange  Bank,  106  Mo.  Ass'n,  58  Minn.   108,  25  L.  R.  A. 

App.  1,  78   S.  W.  1038;    Smith  v.  280. 
Elizabethport,  etc.  Co.,  69  N.  J.  L. 


§   96.]  FOR  SOLE  BENEFIT  OF  BAILOR.  73 

reasonable  care  required  is  the  negligence  which  creates  the 
liability,  and  whether  this  existed  is  a  question  of  fact  for  the 
jury  to  determine."  ^ 

§  94.  Authorities  not  entirely  harmonious. — As  to  this  lia- 
bility, and,  more  properly  speaking,  the  manner  of  arriving  at 
it,  the  modern  authorities  do  not  seem  to  be  entirely  harmoni- 
ous. There  are  those  who  would  entirely  ignore  the  degrees  of 
diligence  and  negligence,  and  base  the  question  of  liability 
upon  what  they  assert  to  be  more  philosophical,  contending 
that  the  degree  of  care  is  fixed  by  the  mutual  understanding 
of  the  bailment  purpose,  and  that  any  neglect  of  the  fairly  un- 
derstood terms  of  the  contract  would  render  the  bailee  liable 
for  any  injury  that  resulted  therefrom.  It  may,  however,  be 
said  that  the  weight  of  authority  is  for  the  upholding  of  the 
standard  of  relative  diligence,  and  the  courts  are  continually 
relying  upon  these  old  rules  and  fixing  liability  by  determining 
the  degrees  of  diligence  and  negligence  as  laid  down  by  the 
earlier  writers. 

§  95.  For  the  sole  benefit  of  the  bailor. — The  bailment  must 
be  for  the  sole  benefit  of  the  bailor;  the  slightest  benefit  to  the 
bailee  would  place  the  bailment  in  another  class,  and  require 
a  greater  degree  of  diligence  to  be  exercised  on  the  part  of  the 
bailee.  It  is  for  this  reason  that  the  depositum  or  this  class  of 
bailments  does  not  include  the  general  deposit  of  money  in  a 
bank,  and  can  only  include  the  special  deposit  of  the  thing; 
because  in  the  former  the  bank  bailee,  from  the  very  nature  of 
the  bailment,  has  the  right  to  use  the  deposited  money  in  its 
business  and  thus  derive  some  benefit,  and  so  it  would  not  be 
for  the  sole  benefit  of  the  bailor. 

§  96.  Even  indirect  benefit  would  change  the  class  of  bail- 
ment.— No  matter  how  slight  the  benefit,  or  how  indirectly  it 
comes  to  the  bailee,  if  there  is  any  benefit  whatever  it  would 
place  the  bailment  in  another  class  of  bailments,  viz.,  in  that 
class  where  the  benefit  is  mutual,  and  thus  change  the  liabil- 
ity of  the  bailee.    So  slight  is  the  consideration  that  will  change 

»  Preston  v.  Prathers,  137  U.  S.  State  Fair,  106  Ala.  340,  28  L.  R. 

604;  Gray  V.  Merriam,  148  111.  179;  A.   716;  Moeran  v.   N.   Y.   Poultry 

Carpenter  v.   Branch,   13  Vt.   161,  Ass'n,  59  N.  Y.  S.  — ;  Smith  v.  Li- 

37  Am.  Dec.  587;  Francis  v.  Shra-  brary,  etc.,  58  Minn.  108,  25  L.  R. 

der,    67    111.    272;    Chamberlain   v.  A.  280. 
Cobb,  32  Iowa,  161;  Prince  v.  Ala. 


74  ORDINARY  BAILMENTS.  [§   97. 

the  bailment  from  this  class  to  a  mutual-benefit  bailment,  that 
it  has  been  held  that  the  mere  acceding  to  a  request  on  the  part 
of  the  bailee  to  perform  the  trust,  would  raise  the  standard  of 
liability  and  render  the  bailee  liable  for  ordinary  negligence, 
and  require  of  him  ordinary  diligence,  upon  the  presumption 
that  his  request,  acceded  to,  is  a  benefit  to  him.  In  the  case  of 
Vigo  Agricultural  Society  v.  Brumfiel,^^  where  the  plaintiff,  in 
compliance  with  an  invitation,  sent  his  gun  to  an  agricultural 
fair  for  exhibition,  the  court  held  it  a  bailment  for  the  benefit 
of  both  parties,  requiring  ordinary  care.     The  court  say: 

"The  case  made  hy  the  complaint  is  one  of  bailment.  The 
bailment  was  not  a  gratuitous  one,  for  the  reason  that  the  ex- 
hibition of  the  gun,  in  response  to  the  invitation  contained  in 
the  advertisement  of  the  appellant,  constituted  a  consideration 
for  the  undertaking.  It  may  be  true  that  both  parties  derived 
a  benefit,  but  this  did  not  strip  the  contract  of  its  character, 
that  of  a  bailment  for  reward.  The  reward  was  not,  it  is  true, 
in  money,  but  it  was  nevertheless  a  reward  in  the  form  of  an 
act  performed  at  the  request  of  the  bailee.  An  association 
which  invites  persons  to  supply  articles  to  enable  it  to  conduct 
an  exhibition  receives  some  consideration  from  the  person  who 
responds  to  its  invitation  by  placing  articles  in  its  care  for  ex- 
hibition. 

"Where  a  consideration  of  an  indeterminate  value  is  agreed 
upon  by  the  parties,  the  courts  will  not  undertake  to  determine 
its  adequacy,  but  will  respect  the  judgment  of  the  parties  and 
enforce  their  contract." 

§  97.  Notice  of  facts  requiring  special  care. — While  it  is  true 
that  the  bailee  in  this  class  of  bailments  is  only  held  to  slight 
diligence  and  answerable  for  gross  negligence,  we  must  always 
keep  in  mind  that  slight  diligence  is  more  or  less  modified  or 
enlarged  by  particular  circumstances,  as  shown  in  our  discus- 
sion of  definitions  of  diligence  and  negligence.  So  where  the 
bailee  has  had  notice  of  facts  with  reference  to  the  bailment  that 
require  special  care,  he  will  not  be  permitted  to  exercise  so 
gross  a  degree  of  negligence  as  to  give  such  facts  no  attention 
whatever;  but  he  is  bound  to  exercise  such  a  degree  of  dili- 
gence as  persons  in  the  like  situation  exercise  over  matters  of 
their  own  under  like  circumstances.  In  Joslyn  v.  King/^  a  let- 
10  102  Ind.  146,  1  N.  E.  382.  n  27  Neb.  38. 


§   99.]  FOR  SOLE  BENEFIT  OF  BAILOR.  75- 

ter  carrier  delivered  a  registered  letter  to  the  clerk  of  a  hotel 
for  one  of  the  guests,  the  letter  containing  one  hundred  dollars. 
The  carrier  required  of  the  clerk  the  usual  receipt,  which  he 
signed,  received  the  letter,  and  put  it  in  the  letter-box  of  the 
hotel,  from  which  place  it  was  stolen.  It  was  held,  in  an  action 
against  the  proprietor  and  clerk  for  the  amount  contained  in 
the  letter,  that  the  receipt  signed  by  the  clerk  was  sufficient  to 
charge  him  with  notice  that  the  letter  was  of  more  than  ordi- 
nary importance,  and  required  special  care,  and  that  the  letter 
carrier,  having  paid  the  amount  contained  in  the  letter  to  the 
person  to  whom  it  was  addressed,  could  enforce  a  liability 
against  the  clerk. 

§  98.  Failure  to  obey  instructions  or  the  terms  of  the  bail- 
ment.— And  again,  the  fact  that  the  bailee  is  only  held  to  slight 
diligence  will  not  excuse  him  from  obeying  instructions  or  from 
following  the  terms  of  the  bailment  and  carrying  out  the  object 
of  the  bailment  contract.  The  diligence  to  which  he  is  held  is 
diligence  in  obeying  instructions,  as  well  as  the  manner  of  do- 
ing the  thing  he  is  instructed  to  do.  In  Colyar  v.  Taylor  ^-  the  su- 
preme court  of  Tennessee  held  one  liable  who  had  gratuitously 
undertaken  to  carry  the  money  of  the  bailor  to  a  certain  place 
and  deliver  it  to  another ;  after  receiving  the  money  the  bailee 
gave  it  to  a  neighbor,  who  undertook  to  carry  it  and  deliver  it 
for  him,  as  requested  by  the  bailor ;  while  on  his  way  home,  in  a 
crowd,  the  neighbor  had  his  pocket  picked  of  the  money.  The 
court  held  that  the  bailee  violated  his  trust  in  handing  the 
monej^  to  the  neighbor,  and  was  guilty  of  gross  negligence.  The 
terms  of  the  bailment  were  violated. 

§  99.  Termination  of  the  relation  and  bailor's  remedies. — 
These  have  already  been  discussed  in  another  chapter,  and  it  is 
not  necessary  to  here  treat  the  subject  again.^^ 

12  41   Tenn.   372;    Cannon  River  is  See  ante,  ch.  V,  §§  77,  78,  etc. 

Mfg.   Co.   V.   First  Nat.   Bank,   37 
Minn.  394, 


CHAPTER  VII. 

LIABILITY  OF  BAILOR  WHEN  BAILMENT  IS  FOR  THE  SOLE 
BENEFIT  OF  THE  BAILEE. 


100.  Commodatum. 

101.  For  the  sole  benefit  of  the 

bailee. 

102.  The  liability  of  the  bailee. 

103.  The   contract   must  be   for 

legal  purpose. 

104.  Need  not  be  absolute  owner 

to  be  bailor  or  lender. 

105.  What   right   does   the    cop- 

tract  of  loan  or  bailment 
confer? 


§  106 


of     the     bor- 


107, 
108 


Obligations 

rower. 
Bailee's  defenses. 
The    injury    or    loss    must 

have    been    without    his 

fault. 

109.  Ordinary  and  extraordinary 

expenses  to  be  paid. 

110.  Redelivery     of     the     thing 

bailed. 

111.  Borrower  cannot  retain  for 

debt  due  him. 


§  100.  Commodatum. — A  bailment  for  tlie  sole  benefit  of  the 

bailee  is  called  comynodatum. 

Definitions. — Sir  William  Jones  defines  this  class  of  bailment 
thus:  "Lending  for  use  is  a  bailment  of  a  thing  for  a  certain 
time  to  be  used  by  the  borrower  without  paying  for  it."  ^  In 
the  civil  law  it  is  defined  to  be  "the  granting  of  a  thing  to  be 
used  by  the  grantee  gratuitously  for  a  limited  time,  and  then  to 
be  specifically  returned. ' ' 

Auliffe  says:  "It  is  a  grant  of  a  thing  made  in  a  gratuitous 
manner  for  a  certain  use,  and  for  a  certain  term  of  time  ex- 
pressed or  implied,  to  the  end  that  the  same  specie  should  be 
again  returned  or  restored  again  to  us,  and  not  another  specie 
of  the  same  kind  or  nature ;  and  this  in  as  good  a  plight  as  when 
it  was  first  delivered." 

Lord  Holt  has  defined  this  class  of  bailment  to  be  "when 
goods  or  chattels  that  are  useful  are  lent  to  a  friend  gratis  to 
be  used  by  him;  and  it  is  called  a  commodatum  because  the 
thing  to  be  returned  in  specie."  So,  it  will  be  observed  from 
these  definitions,  that  a  commodatum  is  the  lending  of  the 
bailed  property  to  the  bailee  for  his  use  and  accommodation 
and  sole  benefit,  gratis,  the  specific  thing  loaned  to  be  returned 
in  as  good  condition  as  when  borrowed. 


1  Jones   on  Bailments,   118,   217. 


§    102.]  FOE  SOLE  BENEFIT  OF  BAILEE.  77 

§  101.  For  the  sole  benefit  of  the  bailee. — The  bailment  must 
be  for  the  sole  benefit  of  the  bailee,  and  there  cannot  be  any 
benefit  whatever,  either  directly  or  indirectly,  to  the  bailor,  for 
if  there  is,  it  at  once  becomes  what  is  known  as  a  mutual  bail- 
ment, in  which  the  duties  and  liabilities  of  the  parties  are  very 
different. 

§  102.  The  liability  of  the  bailee. — The  bailee  in  this  class  of 
bailments  is  held  to  high  diligence  and  liable  for  slight  negli- 
gence. The  care  to  be  bestowed  upon  the  property  by  the  bailee 
is  extraordinary  care,  and,  as  has  been  said,  the  bailee  is  lia- 
ble "not  only  for  a  slight  fault,  but  for  the  slightest  fault," 
And  again,  "he  must  bring  to  the  thing  loaned  all  possible 
care." 

In  discussing  this  extraordinary  care  and  diligence  which  is 
required  by  the  bailee,  Judge  Story  says :  "As  the  loan  is  grat- 
uitous, and  exclusively  for  the  benefit  of  the  borrower,  he  is, 
upon  the  common  principles  of  bailments  already  stated,  bound 
to  extraordinary  diligence ;  and,  of  course,  he  is  responsible  for 
slight  neglect  in  relation  to  the  thing  loaned." 

Sir  William  Jones  is  of  opinion  "that  the  borrower's  in- 
capacity to  exert  more  than  ordinary  diligence  will  not,  even 
upon  the  grounds  of  an  impossibility,  furnish  a  sufficient  excuse 
for  slight  neglect";  for  he  contends  that  the  borrower  ought  to 
have  considered  his  capacity  before  he  deluded  his  friend  by 
engaging  in  the  act  of  borrowing.  And  this  also  is  the  doc- 
trine of  Pothier.  But  his  doctrine  must  be  received  v/ith  some 
qualification  and  reserve,  and  be  confined  to  cases  where  there 
is  either  an  implied  engagement  for  extraordinary  diligence,  or 
the  lender  has  no  reason  to  suspect  or  presume  a  want  of  capac- 
ity; for,  if  the  lender  is  aware  of  the  incapacity  of  the  bor- 
rower, he  has  no  right  to  insist  upon  such  rigorous  diligence. 
He  has  a  right  to  insist  on  that  degree  of  diligence  only  which 
belongs  to  the  age,  character,  and  the  known  habits  of  the  bor- 
rower. Thus,  if  a  spirited  horse  is  loaned  to  a  raw  or  rash  youth, 
or  to  a  weak  and  inefficient  person  who  is  known  to  be  such,  the 
lender  must  content  himself  with  such  diligence  as  they  ma}'- 
fairly  be  expected  to  use;  and  he  has  no  right  to  insist  upon 
the  diligence  or  prudence  of  a  very  thoughtful  and  experienced 
rider."  ^  The  parties  must  here,  as  in  contracts,  be  of  legal  ca- 
pacity to  enter  into  the  contract  relation,  and,  although  not 
competent  to  make  a  contract,  may  be  held  liable  for  destruc- 
2  story   on  Bailments,   sec.   237. 


78  ORDINARY  BAILMENTS.  [§    105. 

tion  or  injury  to  the  property ;  but  it  is  put  upon  other  grounds 
than  that  of  contract  relations,  to  wit,  upon  the  ground  that 
a  tort  has  been  committed.  As,  for  example,  where  an  infant 
borrows  a  horse  to  go  to  a  certain  place,  and  rides  or  drives  the 
animal  beyond  that  place  and  he  is  injured  or  killed,  the  action 
against  the  infant  is  an  action  of  tort,  and  not  an  action  upon 
the  contract. 

§  103.  The  contract  must  be  for  legal  purpose. — The  con- 
tract may_  be  expressed  or  implied.  It  may  be  oral  or  written, 
but  in  its  nature  it  must  be  a  legal  contract,  and  not  an  im- 
moral contract,  or  a  contract  against  the  law.  But  if  it  should 
be  either  immoral  or  for  the  accomplishment  of  some  end  which 
the  law  does  not  countenance,  or  which  the  law  forbids,  the 
contract  would  be  void.  And  so  if  the  property  should  be 
borrowed  by  the  bailee,  and  loaned  by  the  lender  to  him  for 
an  immoral  or  illegal  purpose,  the  law  would  not  recognize 
the  contract,  even  to  the  extent  of  permitting  the  lender  to  re- 
cover the  property,  if  the  bailee  should  refuse  to  redeliver  it  to 
him,  but  the  parties  would  be  left  where  they  had  placed  them- 
selves, and  the  law  would  afford  no  further  remedy. 

§  104.  Need  not  be  absolute  owner  to  be  bailor  or  lender. — 
It  is  not  requisite  to  the  contract  of  bailment  that  the  bailor 
or  lender  should  be  the  absolute  owner  of  the  bailed  property ; 
he  may  have  a  qualified  or  special  property  therein  which  gives 
him  the  control  of  the  possession  and  custody  of  the  thing. 
Having  such  a  special  property  or  control,  he  can  become  a 
bailor  or  lender,  and  his  contract  of  bailment  will  only  be  lim- 
ited by  the  extent  of  his  property  interest  in  the  thing  bailed. 
It  is  said  that  a  thief  in  possession  of  stolen  property  may  be  a 
bailor  as  long  as  his  possession  has  not  been  interfered  with  by 
the  owner  or  by  the  authorities  having  the  right  to  take  the 
property  from  him ;  and  so,  as  we  have  seen,  the  finder  of  prop- 
erty, who  is  entitled  to  the  possession  of  it  against  all  the  world 
except  the  owner,  may  legally  bail  the  property  to  the  bailee, 
and  the  bailment  could  only  be  limited  either  by  the  bailor  or 
the  real  owner  of  the  property. 

§  105.  What  right  does  the  contract  of  loan  or  bailment  con- 
fer?— Because  of  the  small  if  not  doubtful  consideration  moving 
from  the  bailee  in  support  of  this  class  of  bailments,  so  slight  that 
it  has  been  contended  that  there  is  no  consideration,  the  bailment 
being  for  the  sole  benefit  of  the  bailee,  more  or  less  discussion 


§    108.]  FOR  SOLE  BENEFIT  OF  BAILEE.  79 

has  arisen  as  to  the  legal  status  of  the  parties.  It  is  however 
settled  that  the  commodatum  bailee,  having  the  property  as  a 
mere  accommodation  to  him,  has  a  possessory  right  in  it  which, 
like  other  bailees,  he  can  legally  defend  against  third  persons; 
that,  as  to  the  use  of  the  property  this  bailee  may  during  the 
existence  of  the  relation  use  it,  if  his  use  conforms  strictly  to 
the  contract  express  or  implied  which  created  the  relation,  but 
this  use  must  be  confined  to  the  limits  of  the  contract  or  under- 
standing of  the  parties,  and  use  of  the  property  bailed  in  a  dif- 
ferent way  or  to  a  greater  extent  would  render  him  liable  for 
any  loss  or  injury  resulting  therefrom.  So  sensitive  is  the  law 
touching  the  rights  of  the  parties  in  this  respect,  that  the  causes 
which  generally  excuse  a  bailee  acting  within  the  scope  of  the 
contract  of  bailment,  as  for  example,  the  act  of  God  or  the  public 
enemy  or  irresistible  force,  would  not  be  an  available  defense, 
and  while  in  a  strict  sense  this  is  the  law  governing  every  bailee 
whose  acts  without  the  sanction  or  domain  of  his  contract  results 
in  loss  or  injury,  in  the  case  of  the  commodatum  bailee  the  rule 
is  given  a  more  strict  construction  and  the  rights  of  the  bailee 
are  within  much  narrower  limits. 

§  106.  Obligations  of  the  borrower. — Under  the  contract  of 
bailment  the  borrower  is  bound  to  take  good  care  of  the  prop- 
erty; to  use  it  in  accordance  with  the  intention  of  the  parties 
to  the  bailment,  expressed  or  implied  by  the  contract  creating 
the  relation,  and  to  exert  and  exercise  in  the  carrying  out  of 
the  bailment  high  diligence;  and  for  any  loss  resulting,  even 
from  his  slight  neglect,  the  borrower  would  be  liable.  This  lia- 
bility may  be  limited  by  contract,  but  the  liability  of  the  bailee 
in  this  class  of  bailment,  as  in  others  before  discussed,  cannot 
be  limited  to  the  extent  of  allowing  the  bailee  to  commit  fraud, 
or  so  as  to  excuse  gross  negligence. 

§  107.  Bailee's  defenses. — The  bailee  or  borrower,  in  case  of 
commodatum,  like  other  bailees,  is  excused  for  injury  or  loss  to 
the  property  where  the  injury  or  loss  is  occasioned  by  the  act  of 
God,  the  public  enemy,  irresistible  force,  or  inevitable  accident. 
But,  while  he  is  thus  excused,  he  cannot  invoke  these  excuses 
unless  he,  himself,  can  show  that  the  loss  could  not  have  been 
prevented  or  guarded  against  by  the  exercise  of  a  high  degree  of 
diligence  upon  his  part. 

§  108.  The  injury  or  loss  must  have  been  without  his  fault. — 
If  the  borrower  or  bailee  should  in  any  way  fail  to  exercise  this 


80  ORDINARY  BAILMENTS.  [§   109. 

high  degree  of  diligence  in  avoiding  the  loss,  or  if  he  should  be 
found  guilty  of  the  slightest  negligence  with  reference  to  it, 
and  by  reason  of  this  slight  negligence,  or  failure  to  exercise 
this  extraordinary  diligence,  the  loss  or  injury  was  occasioned, 
in  such  case  he  could  not  be  excused.  As,  for  example,  it  has 
been  held  that  where  one  in  possession  of  the  borrowed  prop- 
erty leaves  the  highway  and  goes  by  a  way  which  is  frequented 
by  robbers,  and  is  robbed  of  the  property,  although  by  over- 
powering force,  he  would  be  held  liable.  So,  any  undue  ex- 
posure of  the  property  which  would  not  be  made  by  a  verj^ 
prudent  man  would  render  the  bailee  liable.  It  is,  however,  a 
rule  of  law  that  the  neglect  in  order  to  render  a  bailee  liable 
for  injury  or  loss  of  the  property  must  be  a  neglect  of  duty 
which  the  bailee  was  bound  to  have  performed,  or  some  omis- 
sion to  exercise  diligence  which  he  was  in  duty  bound  to  exer- 
cise ;  and  this  required  duty  or  diligence  must  be  a  duty  or  dili- 
gence which  is  imposed  by  the  contract  which  creates  the  bail- 
ment.^ 

§  109.  Ordinary  and  extraordinary  expenses  to  be  paid. — 
The  implication  is,  from  every  contract  of  this  nature,  that 
the  bailee  will  put  the  property  to  its  natural  and  ordinary  use, 
and  if  in  so  using  it  he  is  put  to  expense,  he  himself  will  be 
required  to  pay  the  expenses.  As,  for  example,  if  the  property 
be  a  horse  placed  in  possession  of  the  bailee  for  use,  its  natural 
and  ordinary  use  would  require  that  the  horse  should  be  fed, 
stabled  and  cared  for;  that  he  would  require  shoeing.  These 
would  be  ordinary  and  usual  expenses  in  the  use  of  the  animal, 
and  the  borrower  would  be  liable  on  account  of  them.  But  if, 
on  the  other  hand,  there  should  be  extraordinary  expenses, — 
expenses  that  are  not  occasioned  or  necessary  by  reason  of  the 
natural  or  ordinary  use  of  the  property,  for  such  extraordinary 
expense  the  bailor  would  be  liable,  and  not  the  bailee  or  bor- 

3  When  the  bailment  or  loan  is  Roberts,  28  Ind.  167;  Scran  ton  v. 
gratuitous  the  bailee  is  held  to  Baxter,  4  Sanford,  N.  Y.  5;  Bel- 
extraordinary  care  and  is  liable  ler  v.  Schultz,  44  Mich.  529,  38 
for  injuries  arising  from  the  Am.  Rep.  280.  A  disregard  of  in- 
slightest  neglect  on  his  part;  but  structions  of  the  bailor  by  the 
not  for  injuries  or  loss  accruing  bailee  as  to  the  use  of  the  property 
wholly  v/ithout  his  fault.  Ben-  bailed  will  render  the  bailee  ab- 
nett  V.  O'Brien,  37  III.  250;  Phil-  solutely  liable  for  any  loss  or  in- 
lips  V.  Couson,  14  111.  84;  Wood  v.  jury  arising  from  such  disregard. 
McClure,   7   Ind.   155;    Watkins  v.  Cullen  v.  Lord,  39  lov/a,  302. 


§   110.]  FOR  SOLE  BENEFIT  OF  BAILEE.  81 

rower  of  the  property.  As  in  the  example  just  used,  while  the 
borrower  would  be  liable  for  the  expenses  that  are  occasioned 
by  the  ordinary  use  of  the  horse,  if  the  horse  should  be  taken 
violently  sick,  and  it  should  become  necessary  to  employ  a  vet- 
erinary, and  thus  large  and  unusual  expenses  were  incurred, 
the  bailor  would  be  liable  for  this  expense ;  and  if  the  borrower 
or  the  bailee  in  the  first  instance  pay  them,  he  could  recover 
from  the  bailor  the  amount  of  such  expenditures.*  But  should 
it  appear  that  the  extraordinary  expenses  were  the  result  of  the 
negligence  of  the  bailee  or  because  of  his  misconduct  or  misuse 
of  the  property  he  would  not  be  entitled  to  reimbursement.^ 

§  110.  Redelivery  of  the  thing  bailed. — At  the  termination 
of  the  bailment  contract  it  is  the  duty  of  the  bailee  to  return  to 
the  bailor  or  lender  the  identical  property  that  was  loaned  to 
him,  together  with  all  natural  accessions  to  the  property;  as, 
for  example,  an  animal's  offspring,  born  during  the  bailment 
relation,  if  bonds  or  securities  the  interest  that  had  been  col- 
lected; and  this  redelivery  must  be  made  at  the  place  and  at 
the  time  mentioned  in  the  contract,  or  implied  by  the  agree- 
ment, or  in  accordance  with  the  intention  of  the  parties  at  the 
time  the  bailment  relation  was  entered  into;  and  the  property 
should  be  delivered  to  the  bailor,  even  though  he  is  not  the 
owner  of  the  property;  and  a  delivery  to  an  agent  of  the  bailor, 
unless  he  was  especially  authorized  by  the  bailor  to  receive  the 
property,  would  not  be  sufficient. 

§  111.  Borrower  cannot  retain  for  debt  due  him. — This  bail- 
ment relation  contemplates  the  redelivery  to  the  bailor  of  all 
the  property  which  was  loaned,  and  the  borrower  would  have 
no  right  to  retain  it,  or  any  portion  of  it,  as  security  for  a 
debt  due  and  owing  to  him  from  the  bailor.  In  this  class  of 
bailments  no  lien  is  created  by  implication,  and  if  there  is  no 
intention  of  the  parties  to  create  a  lien  expressed  in  the  bail- 
ment contract  the  law  will  not  create  one. 

4  Starrett  V.  Barber,  20  Me.  457;  this    applies    as    well    to    mutual 

Blake   v.    Buchanan,    22   Vt.    548;  benefit  bailments  as  to  gratuitous 

Chase  v.  Corcoran,  106  Mass.  286;  bailment. 

Preston  v.  Neal,  12  Gray  (Mass.),  s  Enos  v.  Cole,  53  Wis.  235,  10 

222;     Bacon    v.    New     York,     etc.  N.   W.    377;    Fick   v.   Runnels,    48 

Bank,    9    N.    Y.    S.    435;    Dale    v.  Mich.  302,  12  N.  W.  204. 
Brinkerhoff,  7  Daly,  N.  Y.  45.  And 

6 


CHAPTER  Vm. 

LIABILITY  OF  BAILOR  AND  BAILEE  WHEN  BAILMENT  FOR 
BENEFIT  OF  BOTH. 


112.  Of  the  nature  and   extent 

of     mutual-benefit     bail- 
ments. 

113.  Locatio    et    conductio    bail- 

ments. 

114.  Some  definitions  further  ex- 

plaining. 


§  115.  A  general  view — Locatio  et 
conductio. 

116.  Locatio  conductio  bail- 
ments. 

117.  What  the  hiring  bailments 

embrace. 

118.  General  subdivisions  of  the 

hiring  bailments. 


§  112.  Of  the  nature  and  extent  of  mutual-benefit  bailments. 
— In  this  class  of  bailments  mutual  benefit  is  the  leading  fea- 
ture of  the  contract,  and  by  it  is  fixed  the  liability  of  the 
parties.  The  consideration  supporting  the  contract  is  valuable 
to  both,  and  the  property  interest  in  the  bailment  is  distinct. 

This  is  by  far  the  most  important  class  of  bailments  and  will 
necessarily  include  in  its  discussion  a  great  variety  of  business 
relations.  Belonging  to  this  class  are  pledge  and  pawn,  inn- 
keepers, and  the  so-called  exceptional  bailments — postmasters 
and  common  carriers;  all  of  the  bailments  known  and  com- 
monly denominated  as  the  "locatio^'  bailments  with  their  sub- 
divisions; "locatio  rei/^  which  includes  the  hiring  of  property 
for  use,  and  of  itself  embraces  a  large  amount  of  business; 
"locatio  operis  faciendi,"  embracing  all  of  that  volume  of  con- 
tracts arising  from  the  hiring  of  work  and  labor  to  be  per- 
formed on  the  bailed  property  in  the  hands  of  the  bailee  who 
performs  the  labor;  "locatio  custodiae,^^  all  that  class  of  busi- 
ness relations  pertaining  to  the  care  and  custody  of  goods,  as 
warehousemen,  elevatormen,  and  the  like,  and  those  exceptional 
bailments  which,  because  of  the  peculiar  and  important  rela- 
tions they  create,  coming  so  near  to  the  personal  interests  of 
mankind,  and  often  involving  their  safety,  and  which  for  this 
reason  are  especially  governed  and  controlled  by  public  policy; 
these  include  innkeepers,  or,  as  they  are  more  modernly  called, 
hotel-keepers,  postmasters  who  have  charge  of  the  great  volume 
of  mail  of  the  country,  and  last  and  most  important,  that  class 


§    114.]  FOR  BENEFIT  OF  BAILOR  AND  BAILEE.  83 

denominated  in  the  Roman  subdivision  as  "locatio  operis  mer- 
cium  vehendarum,"  or  the  hiring  of  the  transporting  of  goods 
which  embrace  the  immense  carrying  trade  of  freight  and  pas- 
sengers by  the  carriers  of  the  world. 

To  mention  these  great  business  interests  is  to  impress  one 
with  the  importance  of  the  subject  in  hand.  To  determine  some- 
thing of  the  manner  of  the  carrying  on  of  these  vast  interests, 
and  to  treat  of  the  liability  of  the  parties  engaged  in  the  prose- 
cution of  it,  is  the  work  before  us. 

§  113.  Locatio  et  conductio  bailments. — The  hiring  bail- 
ments, so  called,  are  denominated  'Hocatio^'  bailments,  which 
term  is  used  as  well  in  referring  to  the  "hiring"  bailments  as 
the  "letting"  bailments,  the  hiring  of  the  use  of  the  thing 
bailed  as  the  letting  of  the  thing  to  be  used.  The  conductio 
bailments,  that  is  to  say  locatio,  which  means  letting,  is  used 
indiscriminately  with  conductio,  which  means  hiring.  All  these, 
whether  hiring  or  letting,  in  our  law  are  termed  '' locatio"  bail- 
ments. That  is  to  say,  this  class  of  bailments  is  broader  and 
includes  more  than  the  mere  locatio  (letting)  bailments.  They 
embrace,  as  well,  the  conductio  (hiring)  bailments;  and  so,  in 
discussing  this  subject,  we  shall  treat  locatio  bailments  as  in- 
cluding the  conductio  bailments. 

§  114.  Some  definitions  further  explaining. — With  what  has 
just  been  said  as  to  this  class  of  bailments,  we  call  attention  to 
some  of  the  definitions  of  writers  on  this  subject.  Pothier  de- 
fines this  class  of  bailments  to  be :  "A  contract  by  which  one  of 
the  contracting  parties  engages  to  allow  the  other  to  enjoy  or 
use  the  thing  hired*  during  the  stipulated  period,  for  a  compen- 
sation which  the  other  party  engages  to  pay."  Lord  Holt  in 
Coggs  V.  Barnard  defines  it:  "When  goods  are  left  with  the 
bailee  to  be  used  by  him  for  hire."  These  definitions  only 
contemplate  the  hiring  of  the  thing,  and  the  letting  of  the  thing 
for  hire,  and  exclude  that  other  feature  of  bailments  of  this 
class — the  hiring  of  labor  and  service  upon  and  about  the  thing. 
Bell  defines  with,  perhaps,  more  exactness:  ''Locatio  is  in  gen- 
eral defined  to  be  a  contract  by  which  the  temporary  use  of  the 
subject,  or  the  work  or  service  of  a  person,  is  given  for  an  ascer- 
tained hire."  And  Judge  Story  defines  it  in  still  more  compre- 
hensive language,  saying:  "At  common  law  it  may  properly 
enough  be  defined  to  be  a  bailment  of  a  personal  chattel,  whose 
compensation  is  to  be  given  for  the  use  of  the  thing,  or  for  labor 


84  ORDINARY  BAILMENTS.  [§   11&. 

or  for  services  about  it ;  or,  in  other  words,  it  is  a  loan  for  hire^ 
or  a  hiring  or  letting  of  goods,  or  of  labor  or  services  for  a  re- 
ward."^ 

§  115.  A  general  view — Locatio  et  conductio. — Keeping  in 
view  what  has  been  said  by  way  of  introduction  of  this  division 
of  our  subject,  we  are  at  once  introduced  into  a  broad  and  ex- 
tensive field  of  bailment  law,  compassing  and  bringing  within 
its  limits  varied  and  almost  innumerable  branches  of  business. 
For,  turn  where  we  will  in  the  ordinary  pursuits  of  business 
life,  we  meet  in  one  form  or  another  this  great  and  important 
subject.  The  millionaire  and  capitalist,  the  professional  man, 
the  mechanic  and  artisan,  even  the  laboring  man,  all  of  every 
class  and  pursuit  are  met  by  the  great  enterprises  embraced  in 
this  class  and  by  the  rules  of  law  governing  the  locatio  bail- 
ments. 

The  millionaire  or  capitalist  who  deals  in  stocks,  bonds  and 
loans  and  intrusts  large  personal  securities  to  others  for  specu- 
lation and  investment,  who  projects  great  internal  improve- 
ment as  the  building  and  operating  of  railroads,  and  sends 
the  steamships  to  plow  the  ocean  and  inland  lakes;  the  great 
corporations  who  engage  in  the  business  of  banking  and  broker- 
age ;  the  trust  companies  who  look  after  securities,  certificates 
of  stock  and  coupons,  and  keep  within  their  safe-deposits  the 
money,  titledeeds  and  securities  of  others;  the  warehousemeo 
who,  within  the  walls  of  our  great  warehouses,  store  the  im- 
mense accumulation  of  personal  property  left  with  them  for 
safe  storage;  the  wharfingers  who  hold  for  shipments  by  the 
great  ocean  liners  and  steamships  of  the  great  lakes  and  rivers 
the  immense  consignments  of  freight;  the  manufacturers,  me- 
chanics and  artisans  who  manufacture  the  hundreds  of  thou- 
sands of  articles  for  the  daily  use  and  consumption  of  mankind ; 
the  farmer  who  feeds  and  shelters  our  animals  for  hire;  the 
liveryman  who,  for  a  reward,  furnishes  for  others  horses  and 
carriages  for  their  transportation  in  and  about  the  carrying  on 
of  their  business  and  for  pleasure;  the  jeweler  who  manufac- 

1  In  Sulpho,  etc.  Co.  v.  Allen,  66  a   business    in   which    the   bailee 

Neb.    295,    1    Am.    &    Bng.    Ann.  makes  a  profit."     In  the  notes  in 

Cases,  21,  it  was  held  that  "a  bail-  1  Am.  &  Eng.  Annotated  Cases,  23, 

ment  is  for  hire,  although  no  di-  is  collected  cases  bearing  on  the 

rect  hire  is  paid  for  the  bailment,  subject, 
when  it  is  a  necessary  incident  of 


§    116.]  FOR  BENEFIT  OF  BAILOR  AND  BAILEE,  85 

tures  for  hire  and  reward  the  jewels  for  our  adornment,  and  re- 
pairs our  watches;  the  tailor  who  manufactures  our  cloth 
into  suits  of  clothing  for  our  wearing  apparel;  the  miller  who 
grinds  our  corn  and  wheat  and  other  grains  into  flour  for  our 
bread  and  feed  for  our  animals, — all  these  and  more  are  de- 
pendent upon  the  law  governing  this  class  of  bailments  for  their 
protection  and  defense  and  the  settlement  of  their  property  in- 
terests, this  locatio  conductio,  this  letting  and  hiring  of  things, 
and  labor  and  service  about  the  things  bailed;  to  discuss  such 
a  subject  in  all  its  details  would  consume  more  space  than  we 
can  give  it  in  a  volume  like  this,  and  require  a  research  into 
the  texts  of  authors  and  adjudications  of  courts  that  would  be 
almost  endless.  At  most  we  can  only  hope  to  classify  and  treat 
of  governing  principles  that  in  their  application  embrace  the 
general  subdivision  of  the  subject. 

§  116.  Locatio  conductio  bailments. — These  are  com- 
monly called  the  hiring  bailments.  They  are  created:  (1)  by 
contract  expressed  or  implied;  the  contract  may  be  oral  or  in 
writing,  and  is  supported  by  the  mutual  consideration  or  bene- 
fit to  both  of  the  parties;  (2)  by  operation  of  law,  as  in  case  of 
possession  of  property  obtained  by  officers  of  courts,  prize 
agents  and  salvors ;  this  possession  is  commonly  known  as  quasi- 
bailments. 

§  117.  The  hiring  bailments  embrace  (1)  the  letting  of  the 
thing  for  hire;  (2)  the  hiring  of  the  thing  for  a  reward; 
(3)  work  and  labor  and  service  upon  and  about  the  thing  for 
compensation.  It  must  be  continually  borne  in  mind  that  the  sub- 
ject of  the  bailment  is  always  personalty,  and,  as  we  have  seen, 
it  may  be  corporeal  or  incorporeal ;  that  is  to  say,  it  may  be  tan- 
gible personal  property,  as  horses,  carriages,  manufactured  ar- 
ticles, ships,  railroad  cars,  and  the  like;  or  incorporeal,  as 
stocks,  bonds,  notes,  evidences  of  value,  and  the  like,  but  not 
realty.  The  law  of  bailments  operates  purely  and  solely  in  rem 
• — it  is  the  letting  of  the  thing  which  is  the  subject-matter  of  the 
bailment  for  hire ;  as,  for  example,  the  letting  of  the  horse  and 
carriage  by  the  liveryman,  the  bailor,  to  be  used  and  enjoyed 
by  the  bailee  who  takes  it  temporarily  into  his  possession,  for 
which  the  bailee  pays  to  the  bailor  a  recompense;  the  perform- 
ing of  some  service  or  the  hiring  of  some  service  or  labor  to  be 
performed  upon  the  thing,  the  subject  of  the  bailment,  by  the 
bailee  who  has  the  property  in  his  possession,  for  which  he  re- 


86  ORDINARY  BAILMENTS.  [§    118. 

ceives  some  reward  from  the  bailor;  that  is  to  say,  the  thing, 
the  property  which  is  the  subject  of  the  bailment  upon  which 
the  service  is  to  be  performed,  as  contradistinguished  from  the 
mere  hiring  of  labor  and  service.  To  illustrate,  A.,  the  bailor, 
delivers  to  B.  (a  jeweler),  the  bailee,  his  watch  to  be  repaired. 
A.  hires  B.  to  do  certain  labor  upon  the  thing,  his  watch,  for 
which  he  pays  a  certain  compensation ;  the  subject  of  the  bail- 
ment is  at  all  times  the  watch,  the  watch  delivered  for  repairs, 
the  watch  with  the  labor  performed  upon  it,  the  watch  repaired ; 
and  not  the  labor  and  skill  which  repaired  it. 

§  118.  General  subdivisions  of  the  hiring  bailments. — From 
what  has  been  said,  it  will  be  noticed  that  this  class  of  bail- 
ments naturally  divide  themselves  into  three  general  subdivis- 
ions, viz. : 

First.  The  hiring  of  the  thing  for  use. 

Second.  The  hiring  of  work  and  labor  to  be  bestowed  upon  or 
about  the  thing. 

Third.  The  hiring  of  care  and  custody  of  the  thing.  ' 

These  subdivisions  will  be  discussed  in  the  next  succeeding 
chapters. 


CHAPTER  IX. 

LOCATIO  REI. 


§  119.  The  hiring  of  the  thing  for 
use. 

A  contract  relation. 

Bailor's  title — Warranty  of 
bailor. 

Bailee's  possession  —  Prop- 
erty interest  in  the  thing. 

Duty  of  bailor  to  give  no- 
tice of  defects  rendering 
thing  unfit  for  use  or 
dangerous. 

Bailee — Good  faith  of — Mis- 
use of  thing. 

125.  Conversion  —  What    consti- 
tutes. 

126.  Exercising    unauthor- 


120. 
121. 

122. 

123. 


124. 


ized    dominion    and    con- 
trol  over   property — Con- 
version. 
127  Bailor's  right  against  third 
party,  against  bailee. 

128.  Bailee's    liability    to    third 

parties  for  negligent  use 
— Bailee's  negligence  not 
imputable  to  bailor. 

129.  Bailee's    right    under    cer- 

tain circumstances  to  as- 
sign his  interests. 

130.  Extraordinary  and  inciden- 

tal expenses. 

131.  Termination    of    the    bail- 

ment. 


§  119.  The  hiring  of  the  thing  for  use. — This  class  of  bail- 
ments include  the  locatio  et  conductio  rei  bailments — the  letting 
and  the  hiring  of  the  thing.  Let  us  notice  some  of  the  ver}^ 
common  examples  of  this  class — examples  that  are  of  daily  ob- 
servation to  all  of  us.  A.  calls  on  B,,  who  is  a  liveryman,  to 
hire  for  his  use  a  horse  and  carriage  to  drive  from  Detroit  to 
Birmingham.  B.,  the  liveryman,  lets  the  horse  and  carriage  to 
A.  for  use,  for  a  consideration  paid  by  A. — the  letting  and  the 
hiring  of  the  thing  for  use.  F.,  a  farmer,  calls  on  N.,  his  neigh- 
bor, to  hire  his  team  of  horses  and  wagon  to  draw  his  wheat  to 
the  market  town.  N.  lets  him  have  the  team  and  wagon  for  the 
purpose  of  the  bailment,  viz.,  to  haul  F.  's  wheat  to  the  market 
town,  and  receives  from  F.  a  consideration  for  the  use  of  the 
thing, — the  team  and  wagon;  the  letting  and  hiring  of  the 
thing. 

Often  the  consideration  or  benefit  is  not  so  apparent  as  in 
the  examples  given.  As,  for  example,  the  courts  have  held  that 
even  though  the  benefit  is  an  indirect  benefit,  or  gaining  of  ad- 
vantage or  favor,  it  belongs  to  this  class. 


88  ORDINARY  BAILMENTS.  [§    119. 

In  a  Pennsylvania  case,  Woodruff  v.  Painter,'^  a  merchant 
was  held  liable  for  the  loss  of  a  cloak  of  one  of  his  customers 
who  laid  it  off  at  his  suggestion  in  order  to  try  on  a  new  cloak 
which  he  was  endeavoring  to  sell  her,  the  court  holding  that 
he  was  bound  to  exercise  ordinary  diligence  in  caring  for  the 
cloak ;  that  it  was  in  his  custody.  And  so  it  has  been  held  that 
a  merchant  was  holden  to  ordinary  care  in  caring  for  a  watch 
placed  in  a  drawer  of  his  store  at  the  suggestion  of  a  clerk  dur- 
ing the  time  the  customer  was  engaged  in  trading.  All  these 
cases  were  upon  the  theory  that  there  was  indirect  benefit,  the 
customer  in  having  the  property  cared  for,  the  merchant  in 
the  opportunity  to  sell  his  goods,  the  care  of  the  things,  the 
subject  of  the  bailment,  being  an  incident  to  the  business  in 
which  he  was  engaged.  And  in  a  case  where  the  plaintiff, 
having  a  horse  for  which  he  had  no  use,  to  avoid  the  expense 
of  keeping,  requested  the  defendant  to  take  it  and  do  his  work 
with  it  in  consideration  of  its  feed  and  keeping,  it  was  held  by 
the  Iowa  court  that  this  was  not  a  mere  commodatum  or  gratui- 
tous loan,  under  which  the  defendant  would  be  required  to 
exercise  extraordinary  care,  but  a  contract  for  the  mutual  ben- 
efit of  both  parties,  under  which  the  defendant  was  required 
to  exercise  only  ordinary  care  in  the  keeping  and  use  of  the 
animal.^  The  consideration,  as  we  have  said,  need  not  be  di- 
rect; it  need  not  be  a  money  consideration.  Somewhat  em- 
phasizing this  is  the  opinion  of  the  supreme  court  of  Illinois 
in  Francis  v.  Shrader,^  where  the  court  carefully  distinguishes 
between  a  gratuitous  and  a  mutual  benefit  bailment.  The  plain- 
tiff, the  owner  of  a  mare,  delivered  her  to  the  defendant  to  be 
broken  to  service,  the  defendant  to  pay  no  compensation  for  her 
use.  The  mare  ran  away  and  was  killed.  The  court  below  held 
the  defendant  to  extraordinary  diligence  because  he  was  to  pay 
nothing  for  the  use  of  the  mare.  The  supreme  court  reversed 
the  judgment,  holding  that  it  was  a  benefit  to  both  bailor  and 
bailee,  and  the  bailee,  the  defendant,  should  be  held  only  to 
ordinary  diligence,  that  it  was  not  necessary  that  money  should 
be  paid,  if  there  was  benefit  to  the  bailor  by  reason  of  breaking 
the  mare  to  service,  and  to  the  bailee  by  reason  of  the  use  of  the 
mare,  it  was  a  mutual  benefit  bailment. 

1 150  Pa.  St.  91.  3  67  111.  272. 

2  Chamberlain  v.  Cobb,  32  la.  6. 


§  123.]  LOCATIO  REI.  89 

§  120.  A  contract  relation. — This,  like  other  bailments 

noticed,  is  created  by  contract  express  or  implied,  the  considera- 
tion of  which  rests  upon  the  mutual  benefit  to  each  of  the  par- 
ties. Being  a  valid  agreement  it  may  be  enforced  by  either  the 
bailor  or  bailee,  the  bailor  being  obliged  because  of  it  to  deliver 
the  subject  of  the  bailment  into  the  possession  of  the  bailee  and 
the  bailee  to  receive  it,  and  carry  out  the  purpose  of  the  bailment 
as  expressed  or  agreed  upon. 

§  121.  Bailor's  title — Warranty  of  bailor. — It  is  not  necessary 
that  the  bailor  should  be  the  owner  of  the  property,  or  that 
he  have  the  absolute  title  to  the  thing;  the  only  requisite  is 
that  he  have  such  a  possessory  right  to  the  thing  and  the  use 
of  the  thing  that  he  can  deliver  it  to  the  bailee  for  the  purpose 
of  the  bailment.  It  may  be  that  the  only  right  the  bailor  has 
is  a  lease  of  the  property.  The  bailor,  however,  at  the  time  of 
entering  into  the  bailment  relation  warrants  to  the  bailee  suffi- 
cient title  or  right  to  the  thing  bailed  to  enable  the  bailee  to 
carry  out  the  bailment.  Any  failure  of  the  relation  to  the 
damage  or  injury  of  the  bailee  because  of  want  of  title,  or  right 
to  grant  possession  and  use  for  the  purposes  of  the  bailment 
on  the  part  of  the  bailor,  would  subject  the  bailor  to  an  action 
on  the  part  of  the  bailee.  As,  for  example,  if  by  reason  of  su- 
perior legal  right  of  a  third  party  the  bailee  should  be  deprived 
of  the  possession  and  use  of  the  thing  before  the  expiration 
of  the  bailment,  and  thus  damaged,  he  would  have  an  action 
against  the  bailor  on  account  of  failure  of  his  title. 

§  122.  Bailee's  possession — Property  interest  in  the  thing. 
From  what  has  been  said,  it  follows  that  the  bailee  is  entitled 
to  the  possession  of  the  thing  and  its  use  for  the  purposes  of 
the  bailment.  The  extent  of  the  rights  of  the  bailee  depends, 
of  course,  upon  the  contract  and  the  purposes  of  the  bailment. 
The  possession  and  use  of  the  thing  is  a  property  interest  in  the 
bailee,  of  which  he  cannot  be  deprived  so  long  as  he  fulfills 
upon  his  part  the  bailment  contract,  except  it  be  by  some  one 
who  has  a  better  legal  right  to  it  than  the  right  or  title  of  the 
bailor.  But  as  against  the  bailor,  or  any  persons  claiming 
under  him,  or  who  claim  by  a  lesser  right  or  title,  the  bailee 
can  defend  his  rights  to  use  and  possession. 

§  123.  Duty  of  bailor  to  give  notice  of  defects  rendering 
thing  unfit  for  use  or  dangerous. — It  cannot  be  said  that  there 


90  ORDINARY  BAILMENTS.  [§   12S. 

is  an  implied  warranty  on  the  part  of  the  bailor  that  the  thing 
is  fit  for  the  purposes  of  the  bailment,  or  that  its  use  would  not 
result  in  danger  to  the  bailee ;  and  yet  the  obligation  of  the 
bailor  is  very  nearly  that.  So  far  as  he  knows,  his  obligation 
is  a  warranty  that  the  thing  is  fit  for  the  use  for  which  it  was 
hired,  and  that  its  use  is  not  dangerous  if  in  its  use  the  bailee 
exercises  ordinary  care.  And  the  bailor  is  bound  to  know  the 
full  facts,  if  by  exercising  at  least  ordinary  care  he  could  ascer- 
tain them.  And  if  the  thing  hired  for  use  might  in  its  use  be 
dangerous,  and  results  in  death  or  great  bodily  harm,  then  the 
bailor  will  be  held  to  have  known  that  its  use  was  dangerous 
and  would  so  result,  if  by  exercising  a  high  degree  of  diligence 
he  might  have  known.  If  the  bailor  gave  notice  of  the  defect, 
and,  disregarding  it,  the  bailee  hired  the  thing,  and  by  its 
use  was  damaged  because  of  its  unfitness,  in  such  case  the  bailor 
would  be  relieved  of  liability ;  and  so  if  the  defect  was  a  latent 
defect,  and  by  careful  examination  could  not  have  been  dis- 
covered by  the  bailor,  and  was  not  known  to  him  at  the  time 
of  the  hiring  of  the  thing.  And  so  it  has  been  held  that  the 
plaintiff,  bailee,  could  recover  in  an  action  for  personal  in- 
juries caused  by  the  sudden  collapse,  while  in  ordinary  use,  of 
a  bicycle  leased  by  defendant  to  plaintiff;  the  complainant  al- 
leging defects  in  construction,  and  that  the  machine  was  not 
strong  enough  for  ordinary  use,  which  allegations  were  not 
denied.*    If  the  bailor  should  let  to  the  bailee,  without  notice^ 

4  Moriarty  v.  Porter,  49  N.  Y.  S.  unsuitable.      In    the    case    at    bar 

107,  22   Misc.  Rep.   536;    Glenn  v.  negligence    was    excluded    by    the 

Winters,  40  N.   Y.   S.   659;    Akers  plaintiff's    admission     that    there 

V.  Overbeck,  41  N.  Y.  S.  382.     In  was  no  evidence  that  the  defend- 

Copeland  v.  Draper,  157  Mass.  588.  ant   knew,   or  by   the  exercise   of 

19    L.    R.    A.    283,    284,    in   an  ac-  reasonable  care  could  have  known 

tion  for  damages  for  injuries  re-  that  the  horse  was  unsuitable,  if 

ceived  from  a  vicious  horse  hired  in  fact  it  was.    Therefore  in  order 

from  a  livery  stable,  the  supreme  to     recover,     the     plaintiff     must 

court  of  Massachusetts  went  fully  maintain     that     a     livery     stable 

into  the  law  governing  such  cases.  keeper    warrants    or    insures    the 

The   court,    by   Holmes,    J.,    say:  suitableness  of  every  horse  which 

"Home  V.  Meakin,  115  Mass.  326,  he  lets.     No  such  liability  is  im- 

the  case  relied  on  by  the  plaintiff,  posed  on  him  by  the  fact  that  he 

only  decides  that  if  a  party  negli-  follows    a    common    calling,    any 

gently     furnishes     an     unsuitable  more  than  it  is  upon  every  man 

horse,  it  is  not  a  defense  that  he  who   keeps    a   shop.      ...     If 

did  not  know  that  this  horse  was  it  should  be  sought  to  charge  the 


§  124.J 


LOCATIO  EEI. 


91 


a  vicious  horse, — a  horse  that  he  knew  to  be  vicious,  or  by 
the  exercise  of  care  and  prudence  ought  to  have  known  was 
vicious, — and  the  bailee  should  suffer  an  injury  from  the  use 
of  the  animal,  the  bailor  would  be  liable.^ 

§  124.  Bailee — Good  faith  of — Misuse  of  thing. — In  this  as 
in  all  classes  of  bailments,  absolute  good  faith  on  the  part  of 
the  bailee  in  carrying  out  the  purposes  of  the  bailment  is  re- 
quired, and  this  good  faith  extends  to  the  use  of  the  thing 
hired.    The  bailee  would  not  be  permitted  to  use  the  thing  for 


defendant  for  the  horse  as  for  a 
dangerous  animal,  the  liability 
for  a  horse  on  that  ground,  apart 
from  bailment,  is  confined  to  cases 
where  the  owner  has  notice  of  the 
dangerous  tendency.  Com.  v. 
Pierce,  138  Mass.  165,  179,  52  Am. 
Rep.  264;  Dickson  v.  McCoy,  39 
N.  Y.  400,  403.  See  also  Hawks  v. 
Locke,  139  Mass,  205,  208,  52  Am. 
Rep.  702.  The  suggestion  has  been 
made  following  Mr.  Justice  Sto- 
ry's statement  of  the  doctrine  of 
Pothier,  that  bailors  for  hire  gen- 
erally warrant  the  suitableness  of 
the  thing  let  (Harrington  v.  Sny- 
der, 3  Barb.  380,  381,  Story,  Bail- 
ments §§  383,  390) ;  but  the  com- 
mon law  in  general  applies  the 
principle  of  caveat  emptor  when 
the  hirer  has  examined  the  arti- 
cle. Cutter  V.  Hamlen,  147  Mass. 
471,  475.  .  .  .  The  supposed  war- 
ranty, if  it  existed,  could  not  be 
placed  on  any  of  the  foregoing 
•considerations,  but  would  have  to 
stand  on  the  analogy  of  carriers 
of  passengers,  taking  their  liabil- 
ity in  the  strictest  form  in  which 
it  ever  has  been  taken.  There 
have  been  intimations  if  not  de- 
cisions in  favor  of  such  a  view 
with  regard  to  vehicles  let  for 
the  known  purpose  of  carrying 
passengers  (Jones  v.  Page,  15  L. 
T.  N.  S.  619;  Leach  v.  French,  69 
Me.    389,    392,    31    Am.    Rep.    296; 


Herrington  v.  Snyder,  3  Barb.  380, 
.  .  .  )  but  an  opposite  decision 
was  reached  in  Hadley  v.  Cross, 
34  Vt.  586,  80  Am.  Dec.  699,  and 
in  this  commonwealth  even  car- 
rieps  of  passengers  do  not  war- 
rant their  vehicles,  and  are  not 
liable  if  wholly  free  from  negli- 
gence. Ingalls  V.  Bills,  9  Met.  1, 
43  Am.  Dec.  346;  White  v.  Fitch- 
burg  R.  Co.,  136  Mass.  321,  324; 
Readhead  v.  Midland  R.  Co.,  L.  R. 

2  Q.  B.  412,  L.  R.  4  Q.  B.  379.  It 
follows  a  fortiori  that  one  who 
lets  a  horse  does  not  warrant  that 
he  is  free  from  defects  which  he 
does  not  know,  and  could  not  have 
discovered  by  the  exercise  of  due 
care.  See  Story,  Bailments,  §  391a; 
Edw.  Bailments,  §  373."  In  Lynch 
V.  Richardson,  163  Mass.  163,  in 
a  similar  case  to  Copeland  v.  Dra- 
per, above  cited,  the  court  say,  if 
tne  liveryman  knows  of  the  vi- 
cious habit  of  the  horse  or  "if  by 
the  exercise  of  reasonable  care  to 
ascertain  whether  the  horse  was 
suitable  for  the  use  of  hirers,  he 
ought  to  have  known  that  it  was 
dangerous,  he  is  liable  for  such 
injuries  as  result  from  his  wrong- 
ful conduct.  Palmer  v.  Coyle,  187 
Mass.  136,  140;  Woodward  v. 
Stein,  5  Ohio  Dec.   (Reprint)   171, 

3  Am.  L.   Rec.   352. 

5  Kissman  v.  Jones,  56  Hun,  432. 


92  OEDINAEY  BAILMENTS.  [§   3-25. 

any  other  purpose  than  the  purpose  named  in  the  contract,  or 
by  the  contract  and  its  purpose  implied.  If  A.  should  hire  a 
driving  horse  from  B.,  he  would  not  be  permitted  to  use  him 
for  a  dray  horse,  or  put  him  at  plowing.*^  Or  if  hired  to  go  to 
one  place,  as  on  a  journey  to  Detroit,  the  hirer  would  have  no 
right  to  go  to  some  other  place,  or  drive  him  a  greater  dis- 
tance ;  ^  or,  if  the  horse  were  hired  for  a  day,  and  the  bailee 
should  keep  him  a  week,*  the  bailee  would  be  liable. 

The  question  is,  Did  the  bailee  use  the  thing  in  a  different 
way  or  for  a  different  purpose  than  that  prescribed  or  implied 
in  the  contract  for  hiring?  The  earlier  cases  were  very  strin- 
gent, holding  that  when  the  bailee  thus  violated  the  contract 
by  misuse  of  the  property  he  was  guilty  of  conversion,  and 
would  be  liable  for  any  injury  that  overtook  the  property,  even 
if  caused  by  act  of  God  or  inevitable  accident ;  the  theory  being 
that  by  the  misuse  of  the  thing,  the  bailee  is  guilty  of  conver- 
sion, and  all  the  risks  are  cast  upon  him  that  would  fall  upon 
an  owner.® 

§  125.  Conversion — What  constitutes. — Mere  misuse  of  the 
property  does  not  constitute  conversion.  There  must  be  an  in- 
tentional deviation  from  the  contract — an  assertion  of  right  or 
dominion  over  the  property  inconsistent  with  the  bailor's  rights 
and  ownership.  The  New  Hampshire  court  held  that  "a  con- 
version consists  in  an  illegal  control  of  the  thing  inconsistent 
with  the  plaintiff's  right  of  property."^**  But  just  what  act 
upon  the  part  of  the  bailee  constitutes  conversion  of  the  thing 
hired  has  caused  a  great  deal  of  discussion  and  disagreement 
among  authors  and  courts.  There  is  a  line  of  authorities  which 
holds  that  if  the  hirer  of  a  horse  should  drive  him  beyond  the 
place  for  which  he  was  hired,  that  act  would  be  deemed  a  con- 
version ;  and  if  the  animal  should  suffer  injury,  even  after  re- 
turning within  the  limits  for  which  it  was  hired,  the  bailee 
would  be  liable  for  conversion  of  the  property.  The  Massa- 
chusetts court,  in  Spooner  v.  Manchester,  held  that  an  inten- 
tional deviation  from  the  line  of  travel  is  an  act  of  dominion 
exercised  over  the  horse  inconsistent  with  the  rights  of  the 

6  Lockwood  V.  Ball,  1  Cow.  (N.  » Spooner  v.  Manchester,  133 
Y.),  322.  Mass.  270. 

7  Coggs  V.  Bernard,  2  Ld.  Raym.  lo  Woodman  v.  Hubbard,  25  N. 
909.  H.  67. 

8  Stewart  v.  Davis,  31  Ark.  518. 


§   127.]  LOCATIO  REI.  93 

owner."  Another  class  of  cases  holds  that  if  the  animal  did 
not  receive  the  injury  while  being  driven  without  the  limits 
of  the  hiring,  the  bailee  would  not  be  held  for  conversion.^^ 

§  126.  Exercising  unauthorized  dominion  and  control 

over  property — Conversion. — Conversion  is  a  question  more  or 
less  of  intention.  There  are  some  acts  upon  the  part  of  the 
bailee  which  would  clearly  prove  such  intentional  conversion 
of  the  property;  as,  for  example,  an  unauthorized  sale  of  the 
property."  In  such  case  the  bailor  may  take  his  choice  oi 
actions;  he  may  sue  the  bailee  for  conversion  of  the  property 
in  an  action  of  trover,  or  bring  an  action  of  replevin  against 
his  vendee  for  the  recovery  of  the  specific  property,  or,  if  on 
demand  the  vendee  refuses  to  yield  up  the  property,  the  bailor 
may  bring  an  action  of  trover  as  for  conversion,  or  he  may 
affirm  the  sale  and  recover  from  the  bailee  the  amount  of  the 
purchase  price.  The  supreme  court  of  New  Jersey  in  the  case  of 
N.  Y.,  L.  E.  &  W.  By.  Co.  v.  N.  J.  Electric  By.  Co.,"  held  that 
a  bailor  need  not  look  alone  to  his  bailee  for  a  wrong  by  a 
third  party  in  connection  with  the  bailee,  as  respects  the  con- 
tract of  bailnient.  If  a  bailee  assumes  to  pledge  or  sell  the 
bailed  goods  as  his  own,  such  an  act  amounts  to  a  conversion. 
and  the  bailor  may  immediately  bring  an  action  of  trover  or 
replevin  against  the  third  party  in  whose  possession  the  prop- 
erty is  found;  that  while  a  mere  misuse  might  not  terminate 
the  bailment,  yet  when,  by  the  negligence  of  the  bailee,  either 
alone  or  in  conjunction  with  the  negligence  of  a  third  party, 
the  chattel  bailed  is  no  longer  fit  and  suitable  for,  and  cannot 
be  devoted  to,  the  use  for  which  it  was  hired,  the  contract  of 
bailment  is  at  an  end,  and  the  bailor  can  maintain  his  action  for 
the  injury  done  to  it. 

§  127.  Bailor's  right  against  third  party — Against  bailee. — ^In 
the  ordinary  bailment  the  bailee  has  the  right  to  the  possession 
of  the  property  during  the  existence  of  the  bailment  relation, 
and,  as  we  have  seen  by  reason  of  his  right  to  the  possession  he 
can  defend  against  the  bailor  or  third  parties  for  any  unauthor- 

11 133  Mass.  270.  i3  Rankin  v.  Shepherdson,  89  III. 

12  Farkas  v.  Powell,  86  Ga.  800,  455. 

12  L.  R.  A.  397;  Lovejoy  v.  Jones,  1*60  N.  J.  L.  338,  38  Atl.   828; 

30  N.  H.  164;   Johnson  v.  Miller,  Story,    Bailments    (9th    ed.),    sec. 

16  Ohio,  431;  Rankin  v.  Shepherd-  413;  Einos  v.  Cole,  53  Wis.  235 
son,  89  111.  445. 


94  ORDINAEY  BAILMENTS.  [§   128. 

ized  interference;  but  while  the  bailee  is  entitled  to  this  exclu- 
sive possession  of  the  property  for  the  purposes  of  the  bailment, 
the  bailor  in  the  usual  bailment  has  a  fixed  reversionary  inter- 
est in  the  personal  property.  He  is  entitled  to  the  redelivery 
of  the  property  at  the  expiration  of  the  bailment  relation  in  as 
good  condition  as  when  the  possession  of  the  same  was  deliv- 
ered to  the  bailee.  It  therefore  follows  that  the  bailor  must 
have  the  right  to  defend  his  title  to  the  property  and  to  sus- 
tain an  action  against  either  third  parties,  or  even  against  the 
bailee,  for  trespass,  for  any  use  of  it  that  is  injurious,  or  which 
would  depreciate  its  value  when  it  comes  to  his  hands,  or  that 
might  result  in  the  destruction  of  the  property.^' 

§  128.  Bailee's  liability  to  third  parties  for  negligent  use — 
Bailee's  negligence  not  imputable  to  bailor. — The  bailee,  hav- 
ing absolute  and  entire  control  of  the  possession  and  use  of  the 
property  bailed,  necessarily  becomes  liable  to  third  parties  who 
may  be  injured  by  reason  of  the  negligent  use  of  the  property; 
not  only  does  this  liability  attach  because  of  the  negligent  use 
of  the  property  by  the  bailee  in  person,  but  the  bailee  is  also 
liable  for  the  negligence  of  his  servants  in  respect  to  the  bail- 
ment; but  in  no  case  can  it  be  said  that  the  servants  of  the 
bailee,  in  a  bailment  for  hire,  are  the  servants  as  well  of  the 
bailor.  And  so  it  follows  that  the  bailor  is  not  responsible  to 
third  parties  for  the  negligent  use  of  the  property  by  the  serv- 
ants of  the  bailee,  or  by  the  bailee  himself.  The  bailee  does 
not  stand  in  the  place  of  the  bailor ;  he  does  not  represent  him 
in  such  a  relation  as  would  render  the  bailor  liable  for  his  neg- 
ligent acts,  or  for  the  negligent  acts  of  his  servants  or  agents;  ^® 

15  N.  Y.,  L.  B.  &  West.  R.  Co.  v.  owner.  (Ala.,  1828)  Maxwell  v. 
N.  J.  Electric  Co.,  38  Atl.  828,  60  Eason,  1  Stew.  514;  McCaw  v. 
N.  J.  Law,  338.  Kimbrel,  44  McCord,  220.     A.  was 

16  Hofer  V.  Hodge,  52  Mich.  372.  under  a  contract  with  B.  to  do 
The  bailee  of  a  chattel  is  liable  hauling,  A.'s  teamster  being  em- 
for  the  negligence  of  a  person  em-  ployed.  The  teamster  fell  sick 
ployed  by  him  to  use  it.  Hall  v.  and  A.  took  the  horse  and  cart  to 
Warner,  60  Barb.  198;  Mims  v.  B.,  who  told  him  to  leave  them 
Mitchell,  1  Tex.  443.  Where  cot-  and  he  would  furnish  a  driver  if 
ton  was  sent  to  be  ginned  and  was  it  was  necessary.  B.  directed  an 
destroyed  by  a  fire  that  threat-  incompetent  man  to  drive  the 
ened  the  gin-house,  through  the  horse,  who  backed  him  off  the 
negligence  of  the  bailee's  serv-  dock  and  the  horse  was  drowned, 
ants,   he   was   held   liable   to   the  Held,  that  the  driver  was  the  serv- 


§    129.]  LOCATIO  REI.  95 

and  so,  while  in  an  action  brought  by  the  bailee  against  third 
parties  for  injuries  to  the  property,  the  third  party  may  defend 
in  the  action  upon  the  ground  of  contributory  negligence  upon 
the  part  of  the  bailee,  his  servants  or  agents;  in  an  action  by 
the  bailor,  who  is  the  owner  of  the  property,  against  a  third 
party  for  injury  to  the  bailment,  the  negligence  of  the  bailee, 
or  his  servants  or  agents,  would  be  no  defense  and  would  not 
prevent  a  recovery,  for  the  reason  that  such  negligence  is  not 
imputable  to  the  bailor. 

§  129.  Bailee's  right  under  certain  circumstances  to  assign 
his  interests. — In  the  ordinary  bailment  relation,  the  nature 
of  the  bailment  and  the  object  to  be  effected  by  it  forbids  that 
the  bailee  should  have,  or  should  be  regarded  as  having,  any 
assignable  interest ;  and  as  a  general  rule  any  attempt  upon  the 
part  of  the  bailee  to  make  such  an  assignment  would  be  consid- 
ered as  a  termination  of  the  bailment  and  a  conversion  of  the 
property,  and  the  assignee  would  not,  by  reason  of  the  assign- 
ment, acquire  any  interest  in  the  property.   Such  would  be  the 
rule  in  all  cases  where  the  bailment  can  properly  be  regarded  as 
a  personal  trust  in  the  bailee ;  and  such  is  the  case  where  the  bail- 
ment is  at  will,  that  is,  during  the  pleasure  of  both  parties. 
There  is,  however,  a  large  class  of  bailments,  where  the  bail- 
ment contract  gives  to  the  bailee  an  interest  in  the  property  not 
incident  to  a  simple  bailment;  as  where  there  is  no  personal 
confidence  reposed  in  the  bailee  and  it  would  be  entirely  in  ac- 
cord with  the  contract  creating  the  bailment  to  allow  an  as- 
signment of  his  interest ;  in  such  cases  it  has  been  held  that  the 
bailee  has  an  assignable  interest  which  may  be  transferred  to  a 
third  party;  such  assignment  not  affecting  the  purpose  of  the 
Taailment,  but  being  entirely  harmonious  with  the  purpose  and 
design  of  the  parties.    Examples  may  be  found  where  resident 
property  is  leased  for  a  term  of  years  with  furniture  for  the 
use  of  the  lessee.    If  in  such  case  there  is  nothing  to  prevent 
the  lessee  from  subletting  the  property,  he  may  sublet  the  prop- 
ant  of  B.,  and  that  ordinary  care       other   to   aid    in   doing   the   work, 
was    required    in    the    use    of   the       and    through    the    negligence    and 
property.      Hofer     v.     Hodge,     52       unskillfulness    of    the    latter    the 
Mich.   372,  18  N.  W.  112,   50  Am.       goods  are  injured,  the  owner  may 
Rep.  256.  Where  a  bailee  of  goods,      maintain    an    action   against   him 
intrusted  to  him  to  do  work  upon       therefor.     Baird  v.  Daly,  57  N.   Y. 
them,    with    the    knowledge    and       236,    15   Am.    Rep.    488,   reversing 
privity  of  the  bailor  employs  an-       (1871)  4  Lans.  426. 


96  ORDINARY  BAILMENTS.  [§    131. 

erty  and  assign  his  riglit  to  the  use  of  the  furniture.  So  in 
leases  of  farm  property  where  the  farming  implements  and 
stock  are  upon  the  farm,  the  lessee,  of  course,  becomes  the 
bailee  of  this  personal  property,  and  upon  subletting  the  prem- 
ises could  assign  his  interest  as  bailee  in  it.^^ 

§  130.  Extraordinary  and  incidental  expenses. — This  subject 
has  already  been  discussed,^^  and  we  need  say  no  more  with  ref- 
erence to  it  except,  perhaps,  to  restate  the  rule  that  the  bailor 
would  be  liable  for  any  extraordinary  expenditures ;  while  for 
the  usual  incidental  expenses  the  bailee  would  be  liable  during 
the  use  of  the  property  bailed. 

§  131.  Termination  of  the  bailment. — Nothing  further  need 
be  said  with  reference  to  the  termination  of  the  bailment,  as  it 
has  already  been  discussed.^* 

17  Vincent   v,   Cornell,   13   Pick.  is  to  remain  with  or  be  employed 

294;   Bailey  v.  Colby  et  al.,  34  N.  by   the   bailee,   the   bailee   cannot 

H.  29;   Day  v.  Bassett,  102  Mass.  lease     or     assign     his     interest. 

445.     If   there    is    an    agreement  Crocker  v.  Gullifer,  44  Me.  491,  69 

express  or  implied,  a  part  of  the  Am.  Dec.  118. 
bailment  contract,  that  the  prop-  ^s  Ante,  §  110. 

erty,  the  subject  of  the  bailment,  is  Ante,  ch.  V. 


CHAPTER  X. 


LOCATIO  OPERIS  BAILMENTS. 


132.  The    hiring    of    labor    and 

service  upon  the  thing. 

133.  Locatio    operis    faciendi  — 

The  hiring  of  work  and 
labor  upon  the  thing. 

134.  Contract  relation. 

135.  The  obligations  of  the  em- 

ployer, the  bailor. 

136.  Bailee  has  a  special  prop- 

erty in  the  thing. 

137.  Whether  a  sale  or  a  bail- 

ment. 

138.  When   product   from   mate- 

rial furnished  and  labor 
to  be  sold  and  profits  di- 
vided. 

139.  If   the   thing   is   destroyed 

during  the  carrying  out 
of  the  agreement  or  after 
finished. 

140.  The  duty  of  the  bailee. 

141.  If    the    work    to    be    per- 

formed by  the  job,  and 
loss  or  injury  occur  be- 
fore completion. 

142.  The  work  must  be  done  as 

contracted. 

143.  . 

144.  Not    every   failure    to    per- 

form contract  obligations 
will  deprive  bailee  of  en- 
tire compensation. 

145.  If  the  failure  to  perform  is 

the  fault  of  the  bailor. 

l4b.  Inevitable  accident  or  irre- 
sistible force. 

147.  Reclaiming  the   prop- 
erty. 

7 


§  148,  Generally  bailee  may  do 
the  work  by  an  agent  or 
servant. 

149.  Where  skill  as  well  as  care 

is   required. 

150.  He  must  exercise  the  skill 

adequate  to  the  proper 
performance  of  the  work. 

151.  If  the  bailee  for  hire  pur- 

ports   to    have    skill    he 
must  use  it. 
152. Ordinary  skill  required. 

153.  The    degree    of    skill    and 

diligence  increases  in  cer- 
tain cases. 

154.  Skilled   work  by   an   agent 

or  servant. 

155.  Defenses  of  the  bailee. 

156.  Notice    to    the    bailor   that 

claims  for  defects  must 
be  made  within  a  certain 
time. 

157.  When  will  failure  of  bailor 

to  give  notice  waive  de- 
fects. 

158.  Title  to  the  material  used 

by  bailee  passes  to  bailor 
by  accession. 

159.  The   lien  of  the   bailee   in 

locatio  operis  faciendi 
bailments. 

160.  Priority  of  the  lien. 

161.  Agisters    and    livery-stable 

men — No  lien  at  common 
law. 

162.  Lien  by  statute. 

163.  Chattel  mortgage  takes  pre- 

cedence over  lien. 


98  ORDINARY  BAILMENTS.  [§   133, 

§  132.  The  hiring  of  labor  and  service  upon  the  thing. — This 
embraces  a  large  class  of  bailments,  and,  for  a  clearer  under- 
standing and  discussion  of  the  subject,  has  been  divided  into — • 

1st.  ^'Locatio  operis  faciendi/^  the  letting  of  work  and  labor 
to  be  done  upon  the  thing  for  hire. 

2d.  "  Locatio  custodiae,"  the  letting  of  care  and  custody  of 
the  thing  for  hire. 

3d.  "Locatio  operis  mercium  vehendarum,''  the  letting  of  la- 
bor in  the  carrying  of  goods  from  place  to  place,  embracing 
that  very  important  business  of  carriers  of  goods,  public  and 
private. 

In  this  chapter  we  shall  discuss  the  subdivision  of  the  operis 
bailments,  leaving  others  for  later  chapters. 

§  133.  Locatio  operis  faciendi — The  hiring  of  work  and  la- 
bor upon  the  thing. — From  the  consideration  of  the  letting  and 
hiring  of  the  thing  discussed  in  the  last  chapter,  we  are  led  to 
the  consideration  of  the  letting  of  labor  upon  the  thing,  or,  as 
it  is  more  generally  called,  the  hiring  of  labor  and  service  upon 
the  thing.  This  belongs  to  the  hiring  bailments.  The  benefits 
are  mutual  to  bailor  and  bailee ;  but  whereas  in  the  last  chapter 
we  noticed  that  the  bailee  was  the  party  to  pay  the  considera- 
tion for  the  use  of  the  thing  hired,  here  the  bailor,  by  the  terms 
of  the  contract,  express  or  implied,  is  the  party  who  must  pay 
the  bailee  for  the  labor  and  service  bestowed  upon  the  subject 
of  the  bailment— the  thing.  The  bailor  is  the  hirer  of  the  labor 
and  service  upon  the  thing,  the  subject  of  the  bailment,  which 
is  his  own  property,  or  under  his  control  for  the  purposes  of 
the  bailment. 

The  jobber  sends  his  cloths  to  a  factory  to  be  manufactured 
into  clothing,  for  which  he  contracts  to  pay;  or,  a  person  takes 
cloth  to  a  tailor  to  be  made  into  a  coat,  for  which  he  is  to  pay  a 
certain  sum  of  money.  The  person  furnishing  the  cloth  is  the 
bailor — the  hirer;  the  tailor,  or  person  manufacturing  the  coat 
or  clothing,  doing  the  labor  and  service,  is  the  bailee. 

One  carries  his  watch  to  the  jeweler  to  be  repaired,  or  a 
jewel  to  have  him  set  it  with  gems  which  he  furnishes.  One 
takes  his  material,  lumber,  etc.,  to  the  boat  builder  to  have  him 
construct  a  boat,  or  his  boat  to  be  repaired. 

Now,  it  will  be  observed  that  the  workman,  the  bailee,  is  the 
custodian  of  the  property  as  well  as  the  one  who  contracts  to 
bestow  the  labor  upon  the  thing.    Examples  are  numerous,  but 


§    135.]  LOCATIO  OPERIS  BAILMENTS.  99 

enough  lias  been  noted  to  call  attention  to  the  nature  and  kind 
of  bailment  we  have  under  discussion.^ 

§  134.  Contract  relation. — This  class  of  bailments  is  also  a 
contract  relation  either  express  or  implied,  and  the  duties  and 
liabilities  of  the  parties  are  generally  settled.  These  duties  and 
liabilities  may  to  a  certain  extent  be  limited  or  enlarged  by  ex- 
press contract,  but  if  the  relation  rests  in  implied  contract,  the 
law  is  well  settled  as  to  the  extent  of  the  rights  of  the  parties. 

§  135.  The  obligations  of  the  employer,  the  bailor. — Gener- 
ally speaking,  the  law  imposes  upon  the  bailor,  the  employer,  if 
the  relation  is  by  implied  contract,  the  following  duties  or  obli- 
gations : 

(1)  To  do  everything  consistent  with  the  employment  to  be 
performed  on  his  part  to  enable  the  workmen  to  execute  the 
engagement. 

(2)  To  pay  for  all  necessary,  new  or  accessorial  materials. 

(3)  To  pay  the  price  or  compensation  that  is  to  be  paid  for 
the  work  as  agreed. 

(4)  And  finally,  to  accept  the  thing  when  it  is  finished. 
On  the  other  hand  it  is  the  duty  of  the  bailee  : 

(1)  To  receive,  care  for  and  keep  all  material  furnished  until 
the  contract  is  carried  out,  or  is  determined. 

(2)  To  perform  the  service  in  good  faith  and  as  required  by 
the  undertaking. 

(3)  To  do  the  work  and  produce  the  result  of  the  undertak- 
ing within  the  time  agreed. 

(4)  To  perform  the  work  well,  using  the  skill  and  judgment 
required  and  Avhich  the  workman  claimed  would  be  used  upon 
the  subject-matter  of  the  bailment. 

(5)  To  use  and  employ  the  material  in  a  proper  manner. 

(6)  To  exercise  good  faith  and  honest  dealing  in  carrying  out 
the  undertaking. 

(7)  To  exercise  that  degree  of  diligence  in  all  branches  of 
the  performing  of  the  service  and  using  material  and  accom- 
plishing the  object  of  the  undertaking  that  is  required  by  law 
in  such  like  cases. 

1  Locatio     operis     faciendi,     the  Lincoln  v.    Gay,  164  Mass.  537,  42 

tiring  of  work  and  labor  on  the  N.    B.    95,    49    Am.    St.    Rep.    480; 

thing,  belongs  to  the  mutual  bene-  Zell  v.  Dunkle,  156  Pa.  St.  353,  27 

fit  bailments,  where  ordinary  dili-  Atl.  38;    Gleason  v.  Beers,  59  Vt. 

gence   is  required   and   the  bailee  581,  10  Atl.  86,  59  Am.  757. 
is  liable  for  ordinary  negligence. 


100  ORDINARY  BAILMENTS.  [§   136. 

(8)  To  deliver  the  property  to  the  bailor  when  the  bailment 
contract  is  fulfilled  or  otherwise  terminated. 

§  136.  Bailee  has  a  special  property  in  the  thing. — In  this 
class  of  bailments,  from  its  very  nature,  it  will  be  seen  that  the 
bailee  not  only  has  the  right  to  the  possession,  but  has  a  special 
property  in  the  thing  bailed,  and  perhaps  a  greater  interest 
than  in  other  classes  of  bailment,  because  in  the  performance 
of  the  bailment  he  necessarily  mingles  with  the  property  of  the 
bailor  furnished  to  him  his  labor,  and  often  material,  in  order 
to  carry  out  the  contract ;  and  more  than  this,  he  has  the  prop- 
erty by  contract  and  is  employed  to  do  upon  it  certain  work 
and  labor,  and  thus  reap  a  benefit  to  himself.  And  so  it  follows 
that,  as  the  bailment  advances,  the  interest  of  the  bailee  must 
increase  in  value ;  so  it  has  been  held  that  the  bailee  may  main- 
tain trover  or  replevin  against  a  party  who  undertakes  to 
deprive  him  of  it,  even  against  the  bailor  if  he  should  so  under- 
take before  the  time  stipulated  for  the  carrying  out  of  the  con- 
tract, or  before  the  bailee  has  made  such  default  as  would  ter- 
minate the  relation.  And  so  the  bailee,  without  question,  may 
not  only  maintain  an  action  against  third  parties  for  an  injury 
to  his  possession,  and  as  to  that  he  is  the  only  party  who  can 
during  the  continuance  of  the  bailment  maintain  such  an  ac- 
tion, but  the  general  current  of  authority  seems  to  be  that  he 
may  include  in  such  suit  damages  for  the  entire  injury  to  the 
subject  of  the  bailment ;  but  while  this  right  of  action  is  given 
the  bailee,  no  case  can  be  found  that  denies  the  right  of  the 
bailor  to  sue  and  recover  for  the  permanent  injury  to  the  prop- 
erty, even  before  the  expiration  of  the  bailment.  This  is  upon 
the  principle  that  the  bailor  has  a  reversionary  interest  in  the 
property,  and  one  having  such  an  interest  has  a  right  to  sue 
one  who  is  not  in  possession  thereof  for  an  injury  to  such 
property  which  will  depreciate  its  value  when  it  comes  to  his 
hands,  and  is  entitled  to  recover  damages  to  the  extent  of  the 
injury.^ 

2  Shearman   &   Redf.   Neg.,    sec.  106  Mass.  448;  Leoncini  v.  Post,  13 

119;    Howard   v.    Farr,    18    N.    H.  N.  Y.  S.  825;   Butts  v.  Collins,  13 

457;  N.  J.  Electrical  Ry.  Co.  v.  N.  Wend.  139;   McGraw  v.  Patterson, 

Y.  L.  E.  &  W.  R.  R.  Co.,  61  N.  J.  47  111.  App.  87.     As  to  gratuitous 

L.  287,  43  L.  R.  A.  849;   Brief,  43  bailee.    Chamberlain    v.    West,    37 

L.  R.  A.,  p.  853;    Shaw  v.  Kaler,  Minn.  54,  33  N.  W.  114. 


§    138.]  LOCATIO  OPERIS  BAILMENTS.  101 

§  137.  Whether  a  sale  or  bailment. — It  is  contemplated  in 
this  class  of  bailments  that  the  bailor  furnishes  to  the  bailee  the 
thing  or  the  materials  from  which  the  thing  is  to  be  produced, 
and  that  the  bailee,  the  workman,  is  to  produce  the  thing,  or,  if 
a  thing  that  has  already  been  produced  and  is  delivered  to  him 
for  repairs,  to  make  such  repairs  upon  it ;  that  the  property,  the 
thing  and  the  materials,  are  the  property  of  the  bailor,  to  which 
is  to  be  added  the  service,  work,  or  skill  of  the  bailee.  As,  for 
example,  the  cloth  taken  to  the  tailor  to  manufacture  coats, 
the  undertaking  or  bailment  contract  being  that  for  a  certain 
consideration  the  workman,  from  the  cloth  furnished  him,  will 
furnish  to  the  bailor  a  certain  number  of  coats  manufactured; 
this  would  be  a  bailment  contract,  the  manufactured  coats 
would  be  the  property  of  the  bailor.  Nor  is  it  necessary  that 
the  bailor  should  furnish  all  of  the  material,  nor  does  the  law 
lay  down  any  fixed  or  settled  rule  as  to  just  what  proportion 
of  the  material  must  be  furnished  in  order  that  the  bailment 
should  be  sustained ;  but  in  cases  where  the  bailor,  or  employer, 
did  not  furnish  any  of  the  material,  as,  for  example,  in  a  case 
where  the  undertaking  was  on  the  part  of  the  workman  to  fur- 
nish to  the  employer  a  certain  number  of  coats,  the  workman 
furnishing  both  material  and  labor,  there  could  be  no  question 
but  that  such  an  agreement  would* be  a  contract  of  sale  and 
not  of  bailment.  This  question  will  be  met  as  we  come  to  con- 
sider the  liability  of  the  parties  in  cases  where  the  property  is 
lost  or  injured. 

While  there  is  no  fixed  or  settled  rule  as  to  the  proportion 
of  the  material  the  bailor  or  employer  is  bound  to  furnish  in 
order  to  establish  the  bailment  relation,  it  seems  to  be  gener- 
ally conceded  that  the  bailor  should  furnish  the  principal  part 
of  the  material. 

§  138.  When  product  from  material  furnished  and  labor  to 
be  sold  and  profits  divided.— Considerable  discussion  has  been 
had  as  to  whether,  where  material  has  been  furnished  by  the 
bailor  to  be  wrought  upon  by  the  bailee,  the  product  of  the 
material  and  labor  to  be  sold  in  the  market,  and  the  net  profits 
obtained  from  the  material  to  be  divided  between  the  bailor 
and  bailee,  it  is  a  bailment  relation  or  a  mere  joint  undertaking 
or  a  partnership  agreement.  A  late  case  in  the  state  of  New 
York,  Sattler  v.  Hallock,^  has  discussed  this  question,  holding 

3  15  App.  Div.  Sup.  Ct.  N.  Y.  p.  500. 


102  ORDINARY  BAILMENTS.  [§    138. 

that  in  such  case  the  relation  is  a  bailment  relation ;  and  in  an 
earlier  case,  Gregory  v.  Stryker,*  the  court  says:  "Various  cases 
have  arisen  in  which  property  in  a  raw  state  was  delivered  by 
one  person  to  another  upon  agreement  that  it  should  be 
wrought  upon  and  improved  by  the  labor  and  skill  of  the  bailee, 
and  when  thus  improved  in  value  should  be  divided  in  certain 
proportions  between  the  respective  parties,  and  in  which  it  was 
held  that  the  original  owner  retained  his  exclusive  title  to  the 
property  until  the  contract  had  been  completely  executed,  and 
this,  notwithstanding  the  labor  to  be  performed  by  the  bailee 
might  be  equal  or  even  greater  in  value  than  that  of  the  prop- 
erty when  received  by  him. ' ' 

And  where  plaintiff  and  his  assignors  entered  into  an  agree- 
ment with  the  defendant  by  which  the  defendant  agreed  to 
manufacture  cheese  and  butter  from  milk  delivered  at  his  fac- 
tory by  the  plaintiff  and  his  assignors,  to  sell  the  product  and 
distribute  the  proceeds  according  to  a  contract  between  them, 
the  factory  having  been  destroyed  by  fire,  and  a  quantity  of 
the  milk,  butter  and  cheese  thereby  lost,  in  an  action  to  re- 
cover the  amount  of  the  loss  it  was  held  that  the  contract  was 
one  of  bailment,  and  defendant  assumed  simply  the  duty  to  ex- 
ercise ordinary  care  to  protect  and  preserve  the  property;  that 
the  burden  of  the  proof  was  upon  the  plaintiff  to  show  a  failure 
to  perform  his  duty;  that  no  presumption  of  negligence  arose 
from  the  fact  that  the  loss  resulted  from  the  fire.  The  court 
says: 

"It  is  true  that  where  an  absolute  executory  contract  is 
made,  the  contractor  is  not  excused  by  inability  to  execute 
it  caused  by  unforeseen  accident  or  misfortime,  but  must  per- 
form or  pay  damages  unless  he  has  protected  himself  against 
such  contingency  by  stipulation  in  the  contract.  But  there  may 
be  in  the  nature  of  a  contract  an  implied  condition  by  which 
he  will  be  relieved  from  such  unqualified  obligation,  and  when 
in  such  case,  without  his  fault,  performance  is  rendered  im- 
possible, it  may  be  excused.  That  is  so  when  it  inherently  ap- 
pears by  it  to  have  been  known  to  the  parties  to  the  contract 
and  contemplated  by  them  when  it  was  made,  that  its  fulfill- 
ment would  be  dependent  upon  the  continuance  or  existence, 
at  the  time  for  performance,  of  certain  things  or  conditions 
essential  to  its  execution.     Then  in  the  event  they  cease,  be- 

4  2  Denio,  631. 


§   138.]  LOCATIO  OPERIS  BAILMENTS.  103 

fore  default,  to  exist  or  continue,  and  thereby  performance  be- 
comes impossible  without  his  fault,  the  contractor  is,  by  force 
of  the  implied  condition  to  which  his  contract  is  subje&t,  re- 
lieved from  liability  for  the  consequences  of  his  failure  to  per- 
form. 

"By  the  contract  now  under  consideration,  the  cheese  and  but- 
ter were  to  be  manufactured  at  this  factory,  and  to  be  made 
from  the  milk  furnished  by  the  patrons,  of  whom  the  plaintiff 
and  his  assignors  were  members.  The  existence  of  that  particu- 
lar factory  was  terminated  by  its  destruction,  and  the  loss  with 
it  of  the  manufactured  product  and  of  the  milk  then  remaining 
there  unconverted  into  cheese  and  butter  rendered  it  impos- 
sible for  the  defendant  to  further  proceed  with  the  perform- 
ance of  his  contract  in  respect  to  those  articles  of  material  and 
product.  And  as  the  nature  of  the  agreement  was  such  that 
it  must  be  deemed  to  have  been  contemplated  by  the  parties 
to  it  that  the  articles  to  be  manufactured  should  be  made  only 
from  the  materials  furnished  by  the  patrons  and  at  the  fac- 
tory referred  to,  there  was  necessarily  an  implied  condition  so 
qualifying  the  defendant's  undertaking  as  to  relieve  him  from 
performance  rendered  impossible  without  his  fault,  and  from 
the  consequences  of  his  inability  thus  occasioned  to  fulfill  his 
contract  in  respect  to  the  subject  of  the  bailment  which  was  de- 
stroyed by  the  fire. "  ^ 

5  Stewart   v.    Stone,    127    N.   Y.  profit  or  loss  to  accrue  to  Osborn 

500.    In  Hyde  v.  Cookson,  21  Barb.  in  full  for  tanning  the  hides;  and 

92,  there  was  a  written  agreement  it  was  held  that  this  was  not  a 

between  the  plaintiffs  and  one  Os-  contract  of  sale,  but  of  bailment, 

born  in  relation  to  tanning  a  quan-  and  that  the  title  remained  in  the 

tity  of  hides.     The  hides  were  to  plaintiffs.   In  Pierce  v.  Schenck,  3 

be  furnished  by  the  plaintiffs  on  Hill,  28,  logs  were  delivered  at  a 

a  commission  of  five  per  cent,  for  saw-mill    under    a    contract    with 

buying  and  six  per  cent,  for  sell-  the  person  running  the  mill  that 

Ing   the   leather.      Osborn   was    to  he  would   saw   them  into  boards, 

take    the    hides    to    his    tannery,  and  that  each  party  should  have 

manufacture    them    into    hemlock  one-half.      It    was    held    that    the 

sole  leather,  and  return  it  to  the  transaction  was  a  bailment;   that 

plaintiffs  who  were  to  sell  it  in  the    bailor    retained    his    general 

their  discretion.     When  sold,  the  property   in   the    logs    until   they 

account  was  to  be  made  up,  and  were  all  manufactured  in  pursu- 

the  net  proceeds  of  the  sales,  afte"  ance  of  the  contract;  and  that,  as 

deducting  the  costs  of  hides,  com-  between    the    parties,    the    bailee 

missions,   interest,   insurance  and  acquired    no    interest    in    any    of 

other   expenses,    were    to   be   the  the  boards  manufactured  by  mere 


104 


OEDINAEY  BAILMENTS. 


[§  139. 


§  139.  If  the  thing  is  destroyed  during  the  carrying  out  of 
agreement,  or  after  finished. — It  will  be  observed  that  by  the 
very  nature  of  the  bailment  relation  that  is  created  in  this  class 
of  bailments  the  title  to  the  property  remains  in  the  bailor  dur- 
ing the  time  that  the  work  and  service  is  being  performed 
upon  it  by  the  bailee,  and  therefore  it  follows  that  if  the  prop- 
erty should  be  destroyed  at  any  time  by  reason  of  internal  de- 
fects, inevitable  accident  or  irresistible  force,  and  without  the 
fault  or  negligence  of  the  workman  (the  bailee),  the  loss  would 
necessarily  fall  upon  the  bailor;  and  because  the  thing  under 
such  circumstances  at  the  time  of  the  loss  was  the  property  of 
the  bailor  with  all  the  labor  and  accessorial  material  added,  it 
necessarily  follows  that  the  workman  would  be  entitled  to  re- 
cover from  the  bailor  compensation  for  the  labor  he  had  be- 
stowed upon  the  thing  up  to  the  time  it  perished  or  was  de- 
stroyed, and  would  also  be  entitled  to  compensation  for  any 
material  furnished  by  him  in  carrying  out  the  undertaking.® 


part  performance  within  the  time. 
In  Mallory  v.  Willis,  4  N.  Y.  76, 
the  plaintiffs  agreed  to  deliver 
merchantable  wheat  at  a  flour- 
mill  carried  on  by  the  defendant, 
to  be  manufactured  into  flour. 
The  defendant  agreed  to  deliver 
one  hundred  and  ninety-six 
pounds  of  superfine  flour,  packed 
in  barrels  to  be  furnished  by  the 
plaintiffs,  for  every  four  bushels 
and  fifteen  pounds  of  wheat.  He 
was  to  be  paid  sixteen  cents  per 
barrel,  and  two  cents  extra  in 
case  the  plaintiffs  made  one  shil- 
ling net  profit  on  each  barrel  of 
flour.  The  defendant  was  to  guar- 
anty the  inspection.  The  plaint- 
iffs were  to  have  the  offals  or 
feed,  which  the  defendant  was  to 
store  until  sold.  This  court  held 
in  that  case  that  the  contract  im- 
ported a  bailment,  and  not  a  sale. 
The  doctrine  of  that  case  was  in- 
dorsed in  Foster  v.  Pettibone,  7 
N.  Y.  433.  In  Mack  v.  Snell,  140 
N.  Y.  193,  35  N.  E.  493,  the  parties 
entered  into  a  contract  by  which 


the  plaintiff  agreed  to  manufac- 
ture for  the  defendant  one  thou- 
sand pairs  of  pruning  shears,  to 
be  in  all  respects  like  a  sample 
furnished,  the  defendant  to  fur- 
nish the  rough  castings  for  the 
handles  and  the  plaintiff  to  fur- 
nish the  blades.  It  was  held  that 
the  contract  was  one  of  bailment, 
and  not  of  purchase  and  sale,  so 
that  the  title  to  the  shears  manu- 
factured was  at  all  times  in  the 
defendant. 

6  Cloth  furnished  by  defendant 
to  be  manufactured  into  gar 
ments,  when  partially  completed 
was  destroyed  by  fire  without 
fault  of  the  plaintiff;  held  that  the 
bailor,  the  defendant,  must  lose 
both  the  material  and  labor,  for 
both  are  his  property;  and  that 
the  bailee  can  recover  for  his 
labor  on  the  material  furnished. 
Labowitz  v.  Frankfort,  23  N.  Y.  S. 
1038;  Labowitz  v.  Soloman,  23  N. 
Y  S.  1040;  Cohen  v.  Moshko- 
witz,  39  N.  Y.  S.  1084.  Unless 
contract  imports  different  obliga- 


§   140.]  LOCATIO  OPERIS  BAILMENTS.  105 

One  cannot  but  notice  here  that  the  rule  would  be  very  dif- 
ferent in  the  case  noted  in  a  former  paragraph  where  the  work- 
man, or  the  bailee,  furnished  all  of  the  material  as  well  as  all 
the  labor,  and  from  the  material  and  labor  was  to  produce  for 
the  employer  certain  manufactured  articles;  in  such  ease,  if 
the  articles  in  process  of  manufacturing,  or  after  they  were 
completed,  but  before  delivery,  should  be  destroyed,  the  work- 
man could  not  recover  from  the  employer  compensation  for  his 
labor  and  material,  for  the  reason  that  the  thing  would  not  be 
the  property  of  the  purchaser,  but  would  be  the  property  of 
the  workman. 

§  140.  The  duty  of  the  bailee. — The  bailment  relation 

here  created  is  one  for  the  benefit  of  both  bailor  and  bailee, 
and  therefore  ordinary  diligence  is  required  and  the  parties 
are  liable  for  ordinary  negligence.  As  we  have  noticed,  it  is 
the  duty  of  the  bailee  to  receive,  care  for  and  keep  the  mate- 
rials or  things  furnished  for  the  undertaking  until  delivery 
to  the  bailor  according  to  the  contract,  or  until  for  other  rea- 
sons the  bailment  is  terminated ;  to  perform  the  services  in  good 
faith,  and  as  required  by  the  undertaking;  to  do  the  work  well 
and  produce  the  result  of  the  undertaking  within  the  time 
agreed  upon ;  to  use  the  skill  and  diligence  required,  or  the  skill 
and  judgment  claimed  by  him,  the  bailee,  to  be  required  to  exer- 
cise good  faith  in  all  things  pertaining  to  the  contract,  deal  hon- 
estly and  redeliver  the  property  to  the  bailee  when  the  contract 
is  fulfilled.  And  in  this  class  of  bailments  a  further  duty  rest- 
ing upon  the  bailee  is,  that  in  exercising  all  and  each  of  these  re- 
quirements he  must  use  ordinary  diligence,  and  if  he  fails  to  do 
so  and  injury  results  therefrom  to  the  bailor,  he  will  be  liable 
therefor.  If,  however,  the  injury  was  the  result  of  failure  on 
the  part  of  the  bailor,  or  the  employer,  to  perform  his  duty,  and 
his  failure  contributed  to  the  injury  or  loss,  it  would  excuse 
the  bailee  from  liability.  The  question  of  liability  will  be  con- 
sidered later. 

tion.    Rothoseer  v.  Cosil,  79  N.  Y.  64    Mo.   529;    Cullen   v.   Lord,    39 

S.   855.     Has  been  held  that  the  Iowa,  302.     The  bailee  must  show 

bailee  is  entitled  to  compensation  that    the    loss    was    without    his 

for    his    labor,    although    he    was  negligence  or  fault.     Sulpho,  etc., 

guilty  of  unreasonable  delay.  Wil-  Co.  v.  Allen,  66  Neb.  295,  92  N.  W. 

cox  Sewing  Machine  Co.  v.  Himes,  354;    Plildebrand    v.    Carroll,    106 

21  N.  Y.  S.  760;  Bigby  v.  Coombs,  Wis.  324,  82  N.  W.  145. 


106  ORDINARY  BAILMENTS.  [§   141. 

§  141.  If  the  work  is  to  be  performed  by  the  job  and  loss  or 
injury  occur  before  completion. — We  have  already  stated  that 
where  the  title  to  the  thing  and  the  materials  furnished  remain 
in  the  bailor,  or  employer,  during  the  performance  of  the  work 
by  the  workman,  and  the  property  is  lost  without  his  fault,, 
as  by  inevitable  accident,  internal  defects,  or  irresistible  force, 
the  workman  is  entitled  to  compensation  for  his  labor  and  for 
the  material  furnished.  The  rule,  however,  seems  to  be  different 
where  the  contract  for  the  labor  is  an  entirety,  as,  for  example, 
where  the  labor  is  to  be  performed  by  the  job,  and  the  loss  oc- 
curs before  the  work  or  the  thing  to  be  produced  is  completed; 
in  such  case  the  rule  is  that  the  thing  would  perish  to  the  em- 
ployer, and  the  work  to  the  mechanic.  That  is  to  say,  the  em- 
ployer would  lose  the  material  that  he  had  furnished  for  the 
thing  that  was  being  repaired  or  produced,  and  the  laborer 
would  lose  the  labor  that  he  had  bestowed  upon  it.  If,  how- 
ever,  it  should  appear  that  the  loss  was  occasioned  by  reason 
of  want  of  diligence  on  the  part  of  the  bailee  in  taking  care  of 
the  property,  and  that  the  injury  was  the  result  of  his  fault,  in 
such  case  the  bailee  would  have  to  respond  to  the  bailor  in  dam- 
ages for  the  loss  of  the  property  thus  occasioned.  But  if  at  the 
time  the  loss  occurred  the  job  had  been  completed,  but  not  de- 
livered, and  it  was  not  the  duty  of  the  bailee  to  deliver  the  com- 
pleted article,  and  the  loss  or  damage  was  not  the  result  of  his 
fault  or  negligence,  the  bailee  would  be  entitled  to  compensa- 
tion for  his  labor  because  the  title  to  the  completed  article 
would  be  in  the  employer.  This  is  very  well  illustrated  by  the 
court's  opnion  in  Cohen  v.  Mashkowitz,''  in  a  case  where  de- 
fendant employed  the  plaintiff",  a  tailor,  to  put  together  sixty- 
six  garments ;  he  had  a  part  completed,  but  failed  to  send  them 
as  he  agreed  to  do ;  on  the  night  of  the  day  following  the  day 
he  was  to  have  delivered  the  finished  portion,  the  building 
burned  and  the  garments  were  destroyed.  The  court  say:  "As 
the  material  belonged  to  the  defendant,  the  contract  between 
him  and  the  plaintiff  was  one  of  bailment,  and  of  that  class  tech- 

■7  39  N.  Y.  1084;  Archer  v.  In  Labowitz  v.  Frankfort  et  al.,  23 
McDonald,  36  Hun,  194;  McCon-  N.  Y.  S.  1038,  job  was  finished 
ihe  V.  Railway  Co.,  20  N.  Y.  495;  and  defendant  was  to  take  the 
Story,  Bailments,  sec.  421.  In  manufactured  articles.  Court  held 
Cohen  Case,  quoted  in  text,  the  plaintiff  not  in  fault  and  could  re- 
job  not  finished  was  to  have  been  cover  for  his  labor.  Central,  etc., 
delivered  by  plaintiff  but  was  not.  Co.  v.  Moore,  75  Wis.  170. 


§    142.]  LOCATIO  OPERIS  BAILMENTS.  107 

nieally  called  locatio  operis  faciendi,  applicable  'to  the  hire  of 
tailors  to  make  clothes,  of  jewelers  to  set  gems,  and  of  watch- 
makers to  repair  watches. '  In  such  a  case,  if,  while  the  work  is 
being  done  on  a  thing  belonging  to  the  employer,  the  thing  per- 
ishes by  internal  defect  or  inevitable  accident,  without  any  de- 
fault of  the  workman,  the  latter  is  entitled  to  compensation  to 
the  extent  of  his  labor  actually  performed  on  it,  unless  his  con- 
tract import  a  different  obligation;  for  the  maxim  is,  ^Res  perit 
domino.''  The  rule  is  said  to  be:  (1)  If  the  work  is  independ- 
ent of  any  materials  or  property  of  the  employer,  the  manu- 
facturer has  the  risk,  and  the  unfinished  work  perishes  to  him ; 
(2)  if  the  bailee  is  employed  in  working  up  the  materials,  or 
adding  his  labor  to  the  property  of  the  employer,  the  risk  is 
with  the  owner  of  the  thing  with  which  the  labor  is  incorpo- 
rated." 

Judge  Story  in  his  work  on  Bailments®  says:  "But  suppose 
there  is  a  contract  to  do  work  on  a  thing  by  the  job  (as,  for  ex- 
ample, repairs  on  a  ship)  for  a  stipulated  price  for  the  whole 
work,  and  the  thing  should  accidentally  perish  or  be  destroyed 
without  any  default  on  either  side,  before  the  job  is  completed, 
the  question  would  then  arise  whether  the  workman  would  be 
entitled  to  compensation  pro  tanto  for  his  work  and  labor  done 
and  materials  applied  up  to  the  time  of  the  loss  or  destruction. 
It  would  seem  that  by  the  common  law,  in  such  a  case  (inde- 
pendent of  any  usage  or  trade),  the  workman  would  not  be  en- 
titled to  any  compensation,  and  that  the  rule  would  apply  that 
the  thing  should  perish  to  the  employer  and  the  work  to  the 
mechanic;  for  the  contract  by  the  job  would  be  treated  as  an 
entirety,  and  should  be  completed  before  the  stipulated  com- 
pensation would  be  due." 

§  142.  The  work  must  be  done  as  contracted. — The  employer 
is  entitled  to  have  the  work  done  according  to  the  contract,  and 
failure  to  thus  perform  the  work  might  result  in  non-liability 
of  bailor  for  compensation.  In  considering  this  class  of  con- 
tracts it  must  at  all  times  be  borne  in  mind  that  the  thing,  the 
subject  of  the  bailment  and  of  the  contract,  is  the  property  of 
the  bailor  or  the  employer,  and  the  parties  do  not  stand  in  the 
relation  of  vendor  and  vendee.  The  taking  possession  of  the 
property  by  the  bailor  after  the  work  has  been  performed  is 

8  Story,  Bailments,  sec.  426;  2  Kent's  Com.  590,  591;  Schouler,  Bail- 
ments, 111. 


108 


ORDINARY  BAILMENTS. 


[§  142. 


not  an  acceptance  of  the  work,  or  in  auy  sense  a  waiver  of  the 
bailor's  demand  that  the  contract  be  fulfilled. 

If  the  parties  stood  in  the  relation  of  vendor  and  vendee,  or 
buyer  and  seller,  it  would  be  the  duty  of  the  buyer  to  reject 
the  goods  because  of  failure  of  the  seller  to  carry  out  the  agree- 
ment and  to  act  promptly,  and  if  he  did  not  refuse  the  goods, 
to  express  his  dissent  at  once,  and  thus  enable  the  vendor  to 
protect  his  interest;  but  in  this  case  the  property  belongs  to  the 
employer;  he  has  a  right  to  it;  and  it  is  a  question  simply  of 
paying  for  the  labor  and  the  accessorial  materials,  and  so  the 
bailor  may  take  the  property  and  refuse  to  pay  for  the  labor 
and  material  because  of  failure  to  do  the  work  as  agreed  by  the 
bailee. 

The  question  has  often  been  raised  where  the  work  was  con- 
tracted to  be  done  according  to  sample,  and  perhaps  this  class 
of  cases  would  more  squarely  raise  the  question.® 


» McKibben  v.  Bakers,  1  B. 
Mon.  (Ky.),  120;  Dale  v.  See,  51 
N.  J.  L.  378,  18  Atl.  306,  14  Am. 
St.  688,  5  L.  R.  A.  583.  In  Mack 
V.  Snell,  140  N.  Y.  193,  the  court 
held  that  where  the  plaintiff 
failed  to  produce  the  article  ac- 
cording to  the  contract,  the  bailor 
would  not  be  held  for  compensa- 
tion. The  court  say:  "They 
(plaintiffs)  wholly  failed  to  per- 
form their  contract  in  its  true 
scope  and  meaning.  It  is  plain 
that  under  the  general  rule  no 
compensation  can  be  demanded 
by  the  plaintiffs,  the  considera- 
tion upon  which  the  defendant's 
promise  rested  has  never  been 
furnished.  The  defendant,  it  is 
true,  has  title  to  the  shears,  but 
this  is  because  he  owned  the  ma- 
terials out  of  which  they  were 
made;  the  articles  he  contracted 
for  had  never  been  furnished.  In 
the  place  of  these  were  furnished 
articles  useless  and  valueless  be- 
cause of  defects  in  construction 
not  existing  in  the  sample  shears. 
The  claim  is  made,  however,  that 


the  plaintiffs  are  entitled  to  re- 
cover on  the  contract,  not  on  the 
ground  of  performance,  but  by 
reason  of  the  omission  of  the  de- 
fendant to  reject  and  return  the 
shears  delivered.  .  .  ,  Or  to 
notify  the  plaintiff  that  they  did 
not  conform  to  the  contract.  The 
silence  of  the  defendant,  it  is 
claimed,  operated  in  law  as  an 
acceptance  of  the  shears  deliv- 
ered, and  precludes  him  from 
claiming  that  those  subsequently 
manufactured  of  the  same  kind 
were  defective."  The  court  here 
distinguishes  between  the  bail- 
ment contract  and  an  executory 
contract  for  the  manufacture  and 
sale  of  articles  of  a  specified 
kind,  and  holds  that  the  rules  gov- 
erning an  executory  contract  for 
manufacturing  the  chattels  does 
not  apply  in  the  case  at  bar. 
"When  garments  were  delivered 
for  alterations  and  repairs  which 
were  so  unskillfully  done  that 
they  were  rendered  unfit  for  the 
owner's  use,  it  was  held  that  the 
bailor     could     refuse     to     accept 


§    144.]  LOCATIO  OPERIS  BAILMENTS.  109 

§  143.  .     As  we  have  said,  it  is  incumbent  upon  the 

workman  to  do  the  work  in  accordance  with  the  contract  by 
which  it  is  undertaken.  If  the  contract  is  not  written,  there 
are  certain  implied  obligations  that  apply  to  every  undertak- 
ing, and  so  it  may  be  said  that  in  every  case  the  workman  is 
bound  to  do  the  work  reasonably  well,  that  is,  in  a  workman- 
like manner,  using  such  skill  and  judgment  as  the  undertaking 
requires,  and  such  as  the  workman  claims  to  possess;  produc- 
ing the  result  of  the  undertaking  within  the  time  stipulated 
without  waste  or  damage  to  the  employer;  using  the  material 
furnished  in  a  proper  manner,  and  withal  exercising  good  faith 
in  the  performance  of  the  work.  If,  therefore,  the  work  has 
not  been  so  performed,  if  the  contract  has  not  been  kept,  but 
by  reason  of  the  performance  thereof  on  the  part  of  the  bailee 
a  defense  is  afforded  to  the  employer  against  a  demand  for  the 
payment  of  the  price,  that  the  work  was  defectively  or  improp- 
erly done,  that  same  defense  will  be  equally  available  to  the 
employer  after  the  loss.  Judge  Story  says,^°  ''this  seems  to  be 
the  doctrine  of  the  Roman  law,"  and  it  is  also  the  doctrine  of 
the  common  law. 

§  144.  Not  every  failure  to  perform  contract  obligations  will 
deprive  bailee  of  entire  compensation. — Generally,  if  the  work 
is  being  done  under  a  special  contract,  the  terms  of  that  eon- 
tract  must  be  carried  out,  and  if  the  workman  fails  to  produce 
the  thing  as  contracted,  he  will  have  no  remedy  under  the  con- 
tract. As,  for  example,  if  a  workman  contracted  to  build  a 
house  according  to  certain  specifications,  he  could  not  recover 
if  he  failed  to  build  the  house  in  accordance  with  the  specifica- 
tions ;  or,  if  he  did  the  work  unskilfully  or  improperly,  or  failed 
to  complete  it,  he  could  not  recover  under  the  contract.  If  the 
work  was  not  completed  the  contract  would  be  unexecuted,  and 
he  could  not  recover  while  thus  in  default.  The  law  requires 
that  he  perform  his  undertaking. 

And  where  the  workman  does  work  under  a  general  contract 
for  hire,  he  is  held  to  a  performance  of  his  contract  and  to  use 
good  faith  in  its  performance ;  but  the  rule  of  law  depriving  the 
workman  of  any  compensation  is  not  so  fixed  as  in  case  of  a 
special   contract,   and   seems   to   have   somewhat   relaxed,    and 

them  and  recover  for  their  value      Iowa,  198;  Higman  v.  Comody,  112 

of  the  bailee.    May  v.  Gunther,  46       Ala.  267. 

N.  Y.  S.379;  Jones  v.  Foreman,  93  lo  Story,   Bailments,   sec.   420. 


110  ORDINARY  BAILMENTS.  [§   145. 

may  now  be  said  to  have  settled  down  to  this :  If  the  work  is 
so  badly  and  improperly  done  that  the  thing  produced  totally 
fails  of  being  of  any  use  or  value,  or  is  wholly  inadequate  for 
the  purpose  for  which  it  was  designed,  the  workman  cannot  re- 
cover compensation ;  on  the  other  hand,  he  might  be  liable  to 
the  employer  for  the  materials  used  and  for  damages  if  they 
resulted;  but  if  the  thing  produced  has  some  value,  although 
imperfectly  and  inefficiently  done,  the  workman,  under  a  quan- 
tum meruit  count,  might  recover  the  amount  it  would  be  actu- 
ally worth  to  the  employer  under  all  the  circumstances.^^ 

If  the  property  or  thing  is  left  unfinished,  or  is  badly  or  un- 
skilfully wrought  upon  by  the  bailee,  all  because  of  the  wan- 
ton and  wilful  neglect  and  refusal  of  the  workman  to  perform 
his  duty  in  this  regard,  the  workman  at  most  could  recover  no 
more  compensation  than  the  amount  remaining  after  deducting 
the  damages  resulting  from  his  failure  to  perform  his  contract 
from  the  amount  he  was  to  have  received ;  ^^  or  the  employer 
may  disregard  him  and  hire  others  to  complete  the  work  and 
pay  them  therefor  out  of  the  contract  price  agreed  upon  be- 
tween the  bailor  and  original  bailee;  the  balance,  if  any,  would 
belong  to  the  bailee,  unless  reduced  by  other  resulting  damages. 

§  145.  If  the  failure  to  perform  is  the  fault  of  bailor. — It 
goes  without  saying,  that  if  the  bailee  is  prevented  from  exe- 
cuting his  contract  by  reason  of  the  fault  of  the  employer,  as, 
for  example,  by  failing  to  furnish  material  as  stipulated,  or  in 
any  way  hindering  or  obstructing  the  work  of  the  workman, 
or  if  the  plans  were  altered  and  the  work  was  thus  made  more 
difficult,  in  such  case  the  workman  would  not  be  deprived  of 
compensation  on  account  of  failure  to  complete  the  work  at  the 
time  stipulated,  or  in  accordance  with  former  plans.  And  if 
the  workman  was  prevented  from  completing  the  contract  by 
the  employer  without  just  cause  or  reason,  he  would  be  entitled 
to  recover  what  his  services  were  reasonably  worth,  in  an  action 
for  work  and  labor  and  material  furnished. 


11  Grant  v.  Button,  14  Johns.  not  been  completed  when  the  en- 
377.  tire  subject  of  the  bailment  was 

12  Faxen  v.  Mansfield,  2  Mass.  destroyed  and  plaintiff  was  in  de- 
147.  These  cases  are  very  differ-  fault  for  not  delivering  the  pro- 
ent  from  the  cases  discussed  duct.  No  benefit  could  accrue  to 
under  a  preceeding  section  the  owner,  no  quantum  meruit 
{ante,  §  141),  there  the  work  had  action  could  be  invoked. 


§148.]  LOCATIO  OPERIS  BAILMENTS.  Ill 

§  146.  Inevitable  accident  or  irresistible  force. — And  so  if 
the  workman  was  prevented  by  reason  of  inevitable  accident 
from  performing  the  contract  and  was  in  no  way  in  fault  him- 
self, he  would  be  excused  for  the  failure  and  would  not  be  de- 
prived of  compensation  to  the  extent  of  the  reasonable  worth 
of  his  labor;  but  in  such  case  the  bailor  would  not  be  made  to 
suffer  by  being  compelled  to  pay  for  more  than  was  really  done 
upon  the  contract.  In  all  such  cases  the  bailee  must  be  able  to 
show  that  he  exercised  ordinary  care  and  diligence  to  avoid  the 
accident  or  force,  and  acted  honestly  and  in  the  utmost  good 
faith. 

§  147,  Reclaiming  the  property. — This  principle  may 

be  carried  further,  and  it  may  be  laid  down  as  a  rule  well  set- 
tled that  the  bailee,  acting  honestly  and  in  good  faith,  may  and 
should  use  reasonable  diligence  in  reclaiming  the  property  that 
has  been  injured  or  temporarily  lost  by  reason  of  inevitable 
accident  or  irresistible  force,  and  to  the  extent  that  reasonable 
diligence  requires  it  in  the  care  and  protection  of  the  thing, 
the  bailor  will  be  compelled  to  compensate  the  bailee  for  thus 
reclaiming  the  property.  As,  for  example,  if  the  property  has 
been  swept  away  by  flood,  the  bailee,  when  he  finds  it,  should 
return  it  to  his  control  and  possession,  and  if  such  an  act  would 
be  adjudged  the  conduct  of  a  reasonably  prudent  man,  the 
bailee  may  recover  reasonable  compensation  for  the  extra  labor 
thus  bestowed  upon  the  thing. 

§  148.  Generally  bailee  may  do  the  work  by  an  agent  or 
servant. — As  a  general  rule  the  bailee  may  perform  the  labor 
by  other  persons  employed  for  the  purpose;  except  in  cases 
where  the  very  nature  of  the  employment  requires  the  personal 
labor  and  attention  of  the  workman  employed;  as  in  case  of 
employing  a  portrait  painter  to  paint  a  picture,  or  a  profes- 
sional man  to  do  some  work  calling  for  his  personal  skill  in 
the  performance.  But  in  cases  where  the  work  may  be  dele- 
gated to  others,  the  bailee  may  employ  agents  or  servants  to 
perform  the  labor  or  assist  him  in  the  undertaking.  The  bailee 
is  liable  for  the  acts  of  his  servants  or  agents  while  engaged  in 
carrying  on  the  work,  or  engaged  within  the  scope  of  the  em- 
ployment, but  they  cannot  be  held  to  be  in  any  respect  the 
servants  or  agents  of  the  bailor.  Nor  are  the  servants  of  the 
bailee  the  servants  of  the  bailor,  nor  in  any  sense  acting  for 
him ;  and  so  it  follows  that  the  liability  of  the  bailor  and  bailee 


112  OEDINARY  BAILMENTS.  [§   149. 

to  third  parties  is  entirely  independent  the  one  of  the  other.  In 
the  case  of  New  York,  L.  E.  &  W.  By.  Co.  v.  New  Jersey  Elec. 
By.  Co.,  this  question  was  fully  discussed.  There  the  question 
of  contributory  negligence  of  the  bailee  was  claimed  to  be  a 
defense  in  an  action  brought  by  the  bailor,  and  in  the  discus- 
sion of  this  question  the  court  fully  defines  the  rights  and  lia- 
bilities of  the  parties  in  respect  to  like  eases ;  ^^  the  court  hold- 
ing that  in  an  action  by  the  bailor  or  owner  of  the  property  for 
its  damage  or  destruction,  the  defendant,  third  party,  cannot 
defend  upon  the  ground  that  the  bailee,  who  at  the  time  had  the 
property  in  his  possession  and  control,  was  guilty  of  contribu- 
tory negligence ;  that  in  no  way  could  the  use  of  the  property 
by  the  bailee  affect  the  right  of  action  of  the  bailor. 

§  149.  Where  skill  as  well  as  care  is  required. — We  are  here 
to  deal  with  a  higher  class  of  locatio  bailments.  The  subject  em- 
braces that  class  of  labor  and  care  upon  the  subject  of  the  bail- 
ment that  is  usually  denominated  skilled  labor  and  care,  which, 
though  but  ordinary  in  its  class,  is  nevertheless  very  much  more 
than  the  ordinary  care  required  in  the  ordinary  and  usual  bail- 
■  ment  relation.  It  may  be  well  understood  that  the  workman 
who  is  to  receive  material  for  the  construction  of  a  fine  and  diffi- 
cult piece  of  mechanism,  as,  for  example,  an  expensive  piece  of 
jewelry  to  be  set  with  costly  gems ;  or  the  construction  of  an  ex- 
pensive watch,  or  a  carefully-constructed  mathematical  instru- 
ment, must  of  necessity  possess  greater  skill  and  be  required  to 
exercise  a  higher  degree  of  care  than  the  blacksmith  who  is  to 
construct  a  horseshoe  from  iron  at  his  forge,  or  the  carpenter 


13  N.  Y.,  L.  E.  &  W.  Ry.  Co.  V.  and   while,    in   an   action   by   the 

N.  J.  Elec.  Ry.  Co.,  60  N.  J.  L.  338,  bailee  for  injuries  against  a  third 

38  Atl.  828.   Held,  the  servants  of  party,    occasioned    by    his    negli- 

the  bailee  in  a  bailment  for  hire  gence,     the     contributory     negli- 

are  not  the  servants  of  the  bailor,  gence  of  the  bailee  or  his  serv- 

and    he    is   not   responsible   to   a  ants   or  agents   will  constitute   a 

third  party  for  negligence  of  tho  defense   to  the   action,  yet  in  an 

servants  of  the  bailee  in  respect  to  action  by  the  bailor,  who  is  the 

the  bailment.   The  bailee  does  not  owner,  against  a  third  party,  for 

stand  in  the  place  of  the  bailor,  injury  to  the  bailment,  the  negli- 

nor   represent  him  in   such  rela-  gence  of  the  bailee  or  his  serv- 

tion  as  to  render  the  bailor  liable  ants  or  agents  is  not  imputable  to 

for    the    negligent    acts    of    the  such  bailor,  and  will  not  prevent 

bailee  or  his  servants  or  agents;  a  recovery. 


§    150.]  LOCATIO  OPERIS  BAILMENTS.  113 

who  is  to  build  a  board  fence  for  the  farm,  or  a  cattle-barn,  and 
yet  the  rule  of  law  as  generally  stated  in  each  case  would  be  the 
same.  First  of  all,  it  may  be  said  that  when  skill  as  well  as 
care  is  required  by  the  workmen,  the  law  requires  of  him  that — 

§  150.  He  must  exercise  the  skill  adequate  to  the  proper  per- 
formance of  the  work. — The  very  work  itself  carries  with  it  no- 
tice to  the  workman  that  it  requires  more  than  ordinary  labor; 
that  whoever  undertakes  to  perform  the  labor  must  possess  the 
skill,  and  a  degree  of  skill  peculiar  to  the  particular  require- 
ments of  the  particular  piece  of  work.  If  the  bailor  brings  fine 
gold  and  costly  gems  from  which  he  desires  constructed  a  beau- 
tiful necklace,  this  of  itself  notifies  the  w^orkman  that  it  re- 
quires a  skilled  workman  to  do  this  work.  The  law  does  not 
put  this  upon  the  ground  of  a  warranty  either  express  or  im- 
plied, it  is  a  common-law  liability  which  requires  the  bailee,  the 
workman,  to  perform  the  work  with  that  skill  and  ability  which 
the  particular  work  requires;  he  is  bound  to  use  such  reason- 
able skill  as  the  undertaking  demands."  In  Lincoln  v.  Guay,^^' 
cloth  was  delivered  to  a  dressmaker  to  be  made  into  a  dress 
without  any  instructions;  the  dressmaker  made  up  the  cloth 
wrong  side  out.  The  Massachusetts  court  held  that  an  action 
could  be  maintained  against  her.  The  court  say :  "If  the  dress 
was  delivered  to  the  defendant  by  the  plaintiff  without  any  in- 
structions, the  defendant  being  a  bailee  for  hire  was  held  to 
that  degree  of  skill  and  care,  in  the  particular  occupation  in 
which  she  was  engaged,  which  was  that  of  a  dressmaker,  which 
would  enable  her  to  do  the  work  intrusted  to  her  in  a  reason- 
able and  proper  manner."  ^^ 

''The  relation  of  the  bailor  to  the  bailee  is  a  personal  one, 
and  grows  out  of  the  confidence  the  bailor  is  presumed  to  re- 
pose in  the  skill  and  fidelity  of  his  bailee  when  intrusting  his 
property  to  him  for  the  service  intended  to  be  performed  upon 
or  toward  it.    The  law  implies  a  contract  upon  the  part  of  the 

1*  Kuehn  v.  Wilson,  13  Wis.  104.  and    such    sltill    as    he    ought    to 

In  Beal  v.  South  Dover  R.  Co.,  3  have,  namely,  the  skill  usual  and 

H.    &    R.    337,   11   L.    T.    (N.    S.),  requisite     in     the     business     for 

184,  in  discussing  the  duties  of  a  which     he      receives      payment." 

bailee    for    hire    the    court    said  Morton    v.    Fairbanks,    11    Pick, 

from  him  "is  reasonably  expected  (Mass.),  368. 

care    and    diligence,    such   as    are  is  164  Mass.  537. 

exercised     in    the     ordinary    and  le  Jackson    v.    Adams,    9    Mass. 

proper  course  of  similar  business  484;  Story,  Bailments,  sec.  431. 
8 


114  ORDINARY  BAILMENTS.  [§    152. 

bailee  to  perform  the  service  skilfully,  and  then  to  return  the 
chattel  faithfully  on  payment  for  his  service. "^'^  "Every  me- 
chanic who  takes  any  material  to  work  up  for  another  in  the 
course  of  his  trade,  as  where  a  tailor  receives  cloth  to  be  made 
up  into  a  coat,  or  a  jeweler  a  gem  to  be  set  or  engraved  is  bound 
to  perform  it  in  a  workmanlike  manner. ' '  ^^ 

§  151.  If  the  bailee  for  hire  purports  to  have  skill  he  must 
use  it. — The  question  is  not,  has  the  bailee  the  skill  required  to 
do  the  work  in  the  given  case — the  very  fact  that  he  holds  him- 
self out  as  one  who  can  do  the  kind  of  work  required  is  enough. 
If  he  solicits  the  like  kind  of  work  by  personal  solicitation  or 
by  advertising,  he  is  bound  to  exercise  the  skill  required,  and 
the  law  imposes  upon  him  ordinary  care  in  using  the  skill  he 
claims  to  have.  If  the  bailee  actually  possesses  the  skill  re- 
quired, the  law  presumes  that  he  is  employed  because  of  that 
fact,  and  that  the  bailor  has,  by  reason  of  the  employment,  se- 
cured not  only  the  performance  by  him  of  the  labor  necessary 
to  carry  out  the  obligation,  but  that  he  has  also  employed  and 
is  entitled  to  his  skill  and  judgment  in  doing  the  work  required. 
The  maxim  of  the  law  in  such  like  cases  is  ^^  Spondet  peritiam 
artis:"  he  promises  to  use  the  skill  of  his  art;  and  to  do  any- 
thing less  than  that  would  be  a  want  of  that  ordinary  care 
and  diligence  which  the  law  requires  the  bailee  to  exercise;  it 
w^ould  be  such  negligence  as  would  support  an  action  on  the 
part  of  the  bailor.^® 

§  152.  Ordinary  skill  required. — This,  it  will  be  remem- 
bered, is  a  mutual-benefit  bailment,  and  so  the  rule  obtains  that 
in  the  performance  of  the  particular  work  the  bailee  is  only 
held  to  exercise  ordinary  skill;  but  ordinary  skill  in  this  class 
of  labor  is  upon  a  higher  plane  than  in  cases  where  the  labor  re- 
quired is  unskilled  labor.  It  is  such  skill  as  the  ordinarily  skil- 
ful workman  in  such  kind  of  work  would  exercise  upon  his  own 
material  in  performing  the  same  kind  of  service  under  just  such 

17  Rogers  V.  Grothe,  58  Pa.  St.  will  not  relieve  the  bailee  from 
414.  consequences   arising   from  ineffi- 

18  2  Kent's  Com.  588;  Keith  v.  cient  work.  The  title  of  the  pro- 
Bliss,  10  111.  App.  424.  duced   article  from  material   fur- 

i»  Where  skill  is  required  ordi-  nished   is   in   the    bailor   and   ac- 

nary   diligence   requires   the   per-  ceptance  of  the  article  does  iK)t 

formance    and   use   of   competent  accept    the    work    or    waive    the 

skill.     And  it  has  been  held  that  claim  for  defective  work.   Mack  v. 

acceptance  of  the  article  produced  Snell,  140  N.  Y.  193,  35  N.  E.  493. 


§   154.]  LOCATIO  OPERIS  BAILMENTS.  115 

circumstances;  lie  must  exercise  the  skill  he  has;  the  skill  the 
undertaking  requires,  and  nothing  less.-"  This  is  ordinary  skill 
in  this  class  of  service,  and  not  extraordinary. 

§  153.  The  degree  of  skill  and  diligence  increases  in  certain 
cases. — From  what  has  been  said  it  may  be  inferred,  and  it  is 
the  law,  that  the  degree  of  skill  and  diligence  increases  in  pro- 
portion to  the  value,  difficulty  of  performance,  and  delicacy  of 
the  particular  work  to  be  done  or  undertaking  to  be  accom- 
plished; as,  for  example,  if  one  is  employed  to  make  iron  into 
stove  castings,  the  requirements  would  not  be  so  difficult  and 
particular  as  an  employment  to  construct  some  sensitive  math- 
ematical machine ;  a  slight  mistake  in  the  former  ease  might  be 
overlooked,  but  a  very  slight  mistake  in  the  latter  would  ren- 
der the  entire  machine  and  all  the  material  and  labor  valueless. 

§  154.  Skilled  work  by  an  agent  or  servant. — To  just  what 
extent  the  bailee  for  hire  can  perform  the  obligation,  or  do  the 
work  by  agent  or  servants  in  this  class  of  service,  it  would  be 
difficult  to  say  except  in  a  particular  case.  But  by  way  of  a 
general  rule  it  might  be  said  that  the  employment  is  generally 
on  account  of  the  personal  skill  of  the  bailee,  and  whenever  that 
is  true  he  cannot  delegate  the  work  to  another.  " Spondet  peri- 
tiam  artis,"  we  must  remember,  is  the  maxim;  it  is  the  art  of 
the  bailee  himself  that  has  been  employed  and  not  the  art  of 
another. 

If  one  who  is  a  portrait  painter  has  been  employed  to  make 
a  fine  portrait,  the  artist  would  hardly  be  justified  in  employing 
another  to  do  his  work;  or  if  one,  because  of  his  particular 
ability  at  decorations,  were  employed  to  decorate  a  house,  the 
employer  would  be  entitled  to  his  personal  efforts  and  skill,  and 
would  not  be  bound  to  receive  the  work  of  another.  On  the 
other  hand,  if  the  employment  were  such  that  others  could  as- 
sist and  not  infringe  upon  that  personal  engagement,  as  where 
the  labor  given  to  the  agent  or  servant  is  but  common  and  or- 
dinary, such  work  as  the  ordinary  workman  or  person  employed 
could  do,  in  such  case  it  could  be  delegated. 


20  Dale  V.  See,  51  N.  J.  L.  378,  bailment,  and  from  the  act  of  em- 

381,  18  Atl.   306,   5  L.   R.  A.   583,  ployment,  the  law  implies  an  un- 

held    that    where    defendant    re-  dertaking  that  the  work  shall  be 

ceived     material     from     plaintiff  done   with   due  care   and   compe- 

iipon  which  he   was  to   do   work  tent  skill, 
for    reward,    incident    to    such    a 


116  ORDINAEY  BAILMENTS.  [§   155. 

§  155.  Defense  of  the  bailee. — Some  of  the  defenses  of  the 
bailee  in  this  class  of  bailment  have  been  adverted  to.  It  is  or- 
dinary skill  that  is  required  and  not  extraordinary. 

(1)  So,  if  the  bailee  can  show  that  the  skill  and  care  exercised 
in  the  particular  case  was  ordinary,  such  skill  as  we  have  al- 
ready defined  as  ordinary,  and  that  the  skill  claimed  by  the 
bailor  would  be  more  than  ordinary — would  be  extraordinary, — 
this  would  be  a  good  defense.     Or, 

(2)  If  tailor  dictated  how  the  work  should  he  done  and  it 
was  so  done, — in  other  words,  if  it  was  not  the  skill  of  the  bailee 
which  he  desired  to  be  exercised,  but  the  bailor  or  employer  per- 
sisted in  using  his  own  judgment  as  to  the  manner  of  doing  the 
work,  the  bailee  not  being  permitted  to  perform  the  service  as  he 
would  have  performed  it  because  of  the  demands  of  the  bailor 
that  it  should  be  done  otherwise,  and  the  work  was  done  in  all  re« 
spects  in  accordance  with  the  orders  and  judgment  of  the 
bailor  rather  than  according  to  the  judgment  and  desire  of  the 
bailee,  in  such  case  the  bailor  could  not  sustain  an  action 
against  the  bailee  for  failure  to  perform  the  work  skilfully,  or 
in  accordance  with  the  skill  and  judgment  required  in  the  par- 
ticular case.   Or, 

(3)  If  on  account  of  defects  in  property  or  material  furnished 
by  the  bailor  the  result  was  not  satisfactory,  the  bailee  would 
not  be  liable ;  for  it  is  the  duty  of  the  bailor  to  furnish  material 
fit  for  the  work,  material  in  the  use  of  which  the  result  required 
could  be  attained;  if  the  material  is  not  fit,  and  especially  if 
the  bailee  before  commencing  the  work  or  before  using  the  ma- 
terial, had  notified  the  bailor  of  his  inability  to  accomplish  the 
desired  result  on  account  of  the  unfitness  of  the  thing  or  the 
material,  and  after  such  notice  the  bailor  insisted  upon  going  on 
with  the  work,  in  such  case  the  bailor  could  not  sustain  his  ac- 
tion. As,  for  example,  the  jeweler  is  called  upon  to  set  fine 
gems,  and  the  gems  furnished  are  broken  or  defective;  or  the 
miller  to  produce  first-class  flour  from  wheat,  and  the  wheat 
furnished  is  of  poor  quality;  or  the  cabinet-maker  to  build  fine 
furniture,  and  the  lumber  furnished  is  unfit.     Or, 

(4)  If  bailor  refuses  to  furnish  necessary  funds  to  purchase 
needed  articles  and  insist  that  the  amount  furnished  shall  be 
expended,  and  the  best  it  will  purchase  be  used,  and  the  bailee 
purchases,  and  exercises  ordinary  judgment  and  skill  in  makr 


§   156.  J  LOCATIO  OPERIS  BAILMENTS.  117 

ing  the  purchases,  the  bailor  will  not  be  heard  to  say  that  the 
article  is  deficient  because  the  article  so  purchased  was  not  suit- 
able for  the  purpose,  and  that  therefore  the  product  of  the 
workman  is  defective.    Or, 

(5)  If  the  bailor  knows  that  the  bailee  has  not  the  skill  re- 
quired, and  still  with  such  knowledge  employs  him  to  do  the 
work,  and  the  thing  is  defective  and  not  skilfully  wrought,  in 
such  case  the  bailor  could  not  recover  in  an  action  for  damages 
on  the  ground  of  want  of  ordinary  skill  in  the  bailee.  The  law 
will  not  allow  the  bailor  to  use  his  rights  or  privileges  as  a 
weapon  to  inflict  injury;  it  can  only  be  used  as  a  protection 
from  wrong-doing  and  to  remedy  an  injury  resulting  without 
fault  on  his  part.  To  allow  recovery  in  such  a  case  would  be  to 
put  a  premium  upon  bad  faith  or  carelessness,  whereas  the  utmost 
good  faith  and  reasonable  care  is  required  as  well  on  the  part  of 
the  bailor  as  on  the  part  of  the  bailee. 

§  156.  Notice  to  the  bailor  that  claims  for  defects  must  be 
made  within  a  certain  time. — Upon  a  bailment  of  goods  loca- 
tio  operis  faciendi,  to  do  work  upon  them  for  a  reward,  the 
contract  implied  by  law  that  the  work  shall  be  done  with  due 
care  and  competent  skill,  arises  immediately  upon  the  delivery  of 
the  goods  to  the  bailee;  and  upon  the  completion  of  the  work  for 
which  the  bailment  was  made,  it  is  the  duty  of  the  bailee  to  re- 
turn the  goods  to  the  owner,  and  no  notice  imposing  conditions 
upon  the  implied  contract  given  to  the  bailor  after  the  work  is 
completed  would  be  binding.  This  principle  was  well  illustrated 
in  the  case  of  Dale  v.  See  ^^  by  the  supreme  court  of  New  Jersey. 
A  manufacturer  sent  silk  twist  to  a  dyer  to  be  dyed,  relying  upon 
the  implied  contract  of  dyers  to  use  the  proper  degree  of  skill. 
The  twist,  after  being  dyed  by  the  defendants,  was  returned  to 
plaintiffs,  who  wove  a  part  of  it  into  silk  braids.  Subsequently, 
and  in  a  short  time,  these  braids  were  found  to  be  of  greatly  in- 
ferior value  on  account  of  their  being  oily,  which  oily  condition 
was  due  to  unskillful  dyeing.  The  defendants,  on  returning  the 
dyed  silk  to  the  plaintiffs,  sent  their  bill  for  the  same,  upon 
which  was  printed  the  following  notice:  "All  claims  for 
deficiencies  or  damages  must  be  made  within  three  days  from 
date,  otherwise  not  allowed."  No  notice  was  given  the  defend- 
ants by  the  plaintiffs  until  several  months  after  they  received 

21  5  L.  R.  A.  583,  51  N.  J.  L.  378.     See  cases  cited. 


118  ORDINARY  BAILMENTS.  [§    157- 

this  notice.  The  court  held  that  this  was  no  defense  in  case 
of  bailments  "locatio  operis  faciendo,"  that  the  contract  between 
the  parties  arose  immediately  upon  the  delivery  of  the  materials 
to  the  bailee,  and  the  bailee  could  not  prescribe  conditions  under 
which  he  would  perform  the  duty  after  the  work  has  been  per- 
formed. 

§  157.  When  will  failure  of  bailor  to  give  notice,  waive  de- 
fects.— There  can  be  no  question  but  that  the  bailor  having^ 
furnished  the  material  from  which  the  manufactured  article  is 
produced,  is  entitled  to  the  material  and  the  thing  produced  from 
it  at  all  times.  The  title  of  the  thing  manufactured  is  in  the 
owner  of  the  material  whether  it  conforms  to  the  contract  or 
not.  And  as  has  been  held,  "his  retention  of  the  articles  manu- 
factured is  the  exercise  of  an  absolute  right,  and  he  is  neither 
bound  to  inspect  the  articles  nor  to  notify  the  other  party  of  his 
objections." 

But  while  the  owner's  title  cannot  be  questioned  the  rule  of 
good  faith  and  fair  dealing  applies  in  this  class  of  bailments  to 
the  bailor  as  well  as  to  the  bailee,  and  if  he  knows  of  defects 
or  has  objections  he  is  bound  to  speak,  and  especially  is  this  so 
if  to  remain  silent  would  impose  greater  loss  upon  the  bailee. 
Reasonable  diligence  is  therefore  required  not  alone  of  the  bailee 
in  a  mutual  benefit  bailment,  but  is  a  duty  incumbent  as  well 
upon  the  bailor.  And  so  where  the  product  manufactured  from 
furnished  material  is  returned  in  a  condition  not  acceptable  be- 
cause not  done  in  accordance  with  the  contract  or  sample,  and 
is  therefore  useless  to  the  bailor,  the  bailor  will  not  be  permitted 
to  retain  the  articles  for  an  unreasonable  time,  negligently  fail- 
ing or  refusing  to  report  defects  that  he  knows  or  by  the  due 
diligence  might  know  exists,  and  because  of  such  defects  refuse 
compensation  for  the  work  performed.^^ 

22  Mack  V.  Snell,  140  N.  Y.  193.  ment,  and  it  would  not  strengthen 
So  if  cloth  be  delivered  to  a  tailor  such  a  claim  to  call  the  work- 
to  make  a  coat,  and  it  is  deliv-  man's  agreement  to  make  the 
ered  to  the  owner  when  made,  coat  according  to  a  certain  style 
who  accepts  it,  or  retains  and  or  pattern  a  warranty  that  sur- 
uses  it  for  a  long  time,  without  vived  acceptance.  In  such  cases 
any  objection  or  claim  of  defect-  acceptance  or  omission  to  object 
ive  workmanship,  he  cannot  be  within  a  reasonable  time  after  de- 
heard  to  claim,  when  sued  for  livery,  or  opportunity  for  exami- 
the  price  of  the  work,  that  it  was  nation,  operates  to  extinguish  all 
not     done     according     to     agree-  claims  for  breach  of  the  contract. 


§   159.]  LOCATIO  OPERIS  BAILMENTS.  119 

§  158.  Title  to  the  material  used  by  bailee  passes  to  bailor 
by  accession. — This  principle  has  already  been  partially  dis- 
cussed. It  should  be  remembered  that  the  thing  delivered  to 
the  bailee,  upon  which  the  service  is  to  be  performed,  is  a  bail- 
ment, the  title  to  which  is  at  all  times  in  the  bailor ;  and  so  any 
material  used  upon  it,  though  furnished  by  the  bailee,  becomes 
a  part  of  the  thing  and  is  absorbed  by  it,  no  matter  if  the  ma- 
terials are  of  greater  value  than  the  thing.  This  rule  is  im- 
portant in  eases  where  the  thing  is  destroyed  by  unavoidable 
accident  or  irrisistible  force  before  its  completion;  for  in  such 
case,  because  of  the  rule  of  law  of  accession,  the  bailor  is  held 
liable  to  pay  not  only  for  the  labor,  but  for  the  material ;  it  is  all 
the  property  of  the  bailor  when  it  perishes,  and  none  of  it  the 
property  of  the  bailee.^^ 

§  159.  The  lien  of  the  bailee  in  "locatio  operis  faciendi" 
bailments. — We  have  already  discussed,  in  a  general  way,  the 
subject  of  the  lien  of  the  bailee  in  certain  cases,^*  but  as  applied 
to  the  subject  here  under  consideration  it  seems  to  assume  much 
greater  importance.  We  know  that  the  bailee  who  performs  labor 
upon  and  adds  material  to  the  thing  by  way  of  repairs,  as  a 
general  rule  has  a  lien  upon  the  repaired  or  newly-made  chattel 
for  his  labor  and  materials,  and  that  so  long  as  he  keeps  the  thing 
in  his  possession,  asserting  his  lien  and  doing  no  act  incon- 
sistent with  the  lien,  it  will  be  good  as  against  all  the  world. 

This  right  of  lien  has  been  very  much  enlarged  in  later  years. 
Originally  at  common  law  the  right  of  lien  was  confined  to  cases 
where  persons,  by  reason  of  their  occupation,  were  under  obli- 
gation to  receive  and  care  for  and  do  labor  on  the  personal 
property  of  others;  such  as  common  carriers,  innkeepers,  and 
the  like.  In  more  modem  times  the  right  has  been  materially 
extended,  and  now  it  may  be  laid  down  as  a  general  rule  to  which 
there  are  but  few  exceptions,  "that  every  bailee  for  hire,  who 
by  his  labor  and  skill  has  imparted  an  additional  benefit  to  the 
goods  of  another,  has  a  lien  upon  the  property  for  his  reasonable 
charges  in  relation  to  it,  and  a  right  to  retain  it  in  his  possession 
until  these  charges  are  paid.     This  includes  all  such  mechanics, 

See    dissenting    opinion,    O'Brien,  115   N.  Y.   316;    Mason   v.   Smith, 

J.,  in  Mack  v.   Snell,  supra.     Cit-  130  N.  Y.  474. 

ing  Copeley  Iron  Co.  v.  Pope,  108  23  Gregory  v.   Stryker,  2  Denio, 

N.  Y.  232;   Brown  v.  Foster,  108  628;    Story,  Bailments,  423. 

N.  Y.   387;    Streetor   v.   Brestine,  2i  Ante,  §  64. 


120  ORDINAEY  BAILMENTS.  [§   160. 

tradesmen  and  laborers  as  receive  property  for  the  purpose  of 
repairing,  cleansing,  or  otherwise  improving  its  condition." 

In  Wilson  v.  Martin  ^^  the  supreme  court  of  New  Hampshire 
illustrates  this  doctrine  of  lien:  One  had  a  lien  upon  some  har- 
ness of  the  plaintiff  for  oiling  and  cleaning  and  labor  bestowed, 
and  plaintiff  brought  suit  to  recover  them.  The  court  held 
that  he  had  a  right  to  retain  the  possession  and  control  of  the 
harness  until  his  charges  in  that  behalf  should  be  paid. 

§  160.  Priority  of  the  lien. — As  to  whether  the  bailee's  lien 
obtained  because  of  services,  or,  as  is  sometimes  said,  for  better- 
ments upon  the  property,  has  priority  over  other  liens  depends 
entirely  upon  the  circumstances  under  which  it  was  created.  It 
is  a  general  rule  that  the  lien  of  the  workman  as  against  a  prior 
recorded  mortgage,  or  in  some  of  the  states  a  chattel  mortgage  on 
tile,  will  not  be  held  a  prior  lien  without  the  consent  or  acqui- 
escence of  the  mortgagee  obtained  prior  to  the  performing  of  the 
labor  except  where  the  record  lien  is  obtained  during  the  per- 
formance of  the  work.  There  are,  however,  other  circumstances 
that  render  a  lien  of  the  workman,  obtained  by  reason  of  labor 
or  repairs  made  upon  the  property  while  in  the  possession  of  the 
mortgagor  and  at  his  request,  good  even  against  the  mortgagee 
of  the  property  whose  mortgage  is  recorded  or  filed  as  provided 
by  law.  These  cases  seem  to  be  confined  to  repairs  that  are  made 
necessary  to  preserve  the  property  and  make  it  useful.  That  is 
the  case  where  the  property,  if  the  repairs  were  not  made,  would 
become  useless.  The  rule  is  laid  down  and  discussed  in  the  case 
of  Scott  et  al.  v.  Delehunt  et  al.^^  The  action  was  brought  to 
foreclose  a  lien  upon  a  canal-boat  against  the  owner  and  the 
mortgagee — the  mortgagee  defending.  It  appeared  that  the 
owner,  who  was  running  her  as  master,  had  taken  her  to  the 
plaintiff's  dry  dock  for  repairs;  that  the  boat  had  foundered 
and  sunk,  and  unless  the  labor  was  put  upon  her  would  have 
been  useless;  that  the  mortgage  of  the  defendant  was  given  a 
long  time  prior  to  the  time  of  making  the  repairs.  The  court 
say :  *  *  It  must  be  taken  as  true  that  the  owner  was  running  this 
boat  with  the  knowledge  and  consent  of  the  mortgagees,  and  that 
the  repairs  were  necessary  to  repair  the  damage  which  the  boat 
had  received,  and  to  put  her  in  condition  for  use.  Under  such 
circumstances  I  am  of  opinion  that  plaintiff's  lien  has  priority 

25  40  N.  H.  88;   The  case  of  an      house,  6  East,  523;  2  Kent's  Com. 
hostler,  Yelv.  67;   Case  v.  Water-       (5th  ed.)  653. 

26  65  N.  Y.  128;  ante.  §  75. 


§   160.]  LOCATIO  OPEEIS  BAILMENTS.  121 

over  defendants'  mortgage.  The  mortgagees  having  allowed  the 
owner  to  continue  in  the  apparent  ownership  of  the  boat,  mak- 
ing her  a  source  of  profit,  and  a  means  of  earning  wherewithal 
to  pay  off  the  mortgage  debt,  the  relation  so  created  by  impli- 
cation entitles  the  owner  to  do  all  that  may  be  necessary  to 
keep  her  in  efficient  state  for  that  purpose.  The  boat  having 
been  damaged  and  rendered  unfit  for  use,  the  owner  did  that 
which  was  obviously  for  the  advantage  of  all  parties  inter- 
ested ;  he  put  her  into  the  hands  of  the  plaintiffs  to  be  repaired, 
and  according  to  all  ordinary  usage  they  ought  to  have  a  right  of 
lien  on  the  boat,  so  that  those  who  are  interested  in  her,  and  who 
will  be  benefited  by  the  repairs,  should  not  be  allowed  to  take  her 
discharged  of  the  lien.  Looking  to  the  rights  and  interests  of 
the  parties,  generally,  it  cannot  be  doubted  that  it  is  much  to  the 
advantage  of  the  mortgagee  in  such  case  that  the  mortgagor  or 
OT^Tier  should  be  held  to  have  power  to  confer  a  right  of  lien 
on  the  boat  for  repairs  necessary  to  keep  her  fit  for  navigation. 
Such  is  substantially  the  reasoning  of  Erie,  C.  J.,  in  Williams 
V.  Allsup.^'  I  am  unable  to  distinguish  that  case  from  this,  and 
the  reasoning  of  the  learned  judges  who  wrote  opinions  therein 
is  quite  satisfactory.  I  can  perceive  no  distinction  between  the 
two  cases,  founded  upon  the  facts  that  in  that  case  the  vessel  was 
a  steamboat,  navigating  the  ocean  or  navigable  waters  connected 
therewith,  while  in  this  case  the  vessel  was  a  canal  boat.  In  each 
case  the  shipwright  had  possession  of  the  vessel  as  security  for 
repairs,  made  at  the  request  of  the  mortgagor,  or  one  standing 
in  his  place  as  the  owner,  and  the  same  principles  that  would 
give  them  a  superior  lien  in  the  one  case  would  in  the  other." 
It  will  be  seen  that  the  priority  of  the  lien  in  such  cases  is  based 
upon  the  element  of  necessity,  or  the  securing  of  the  property 
and  making  it  useful  to  both  the  owner  and  the  mortgagee ;  that 
by  reason  of  the  repairs  upon  the  property  there  has  been  a  sub- 
stantial benefit  to  the  mortgagee — a  beneft  to  the  extent  of 
making  it  possible  to  recover  the  amount  of  his  mortgage.^® 

27  10  C.  B.  (N.  S.)  417.  session,  the  mortgagor  had  it  re- 

28  In  the  case  of  Hammond  v.  paired.  Held,  that  the  person 
Danielson,  126  Mass.  294,  a  hack,  making  the  repairs  had  a  lien 
described  as  in  use  at  certain  therefor  as  against  the  mort- 
stables,  was  mortgaged,  and,  by  gagee.  Gray,  C.  J.,  delivering  the 
the  terms  of  the  mortgage,  the  opinion,  said:  A  lien  upon  per- 
mortgagor  was  to  retain  posses-  sonal  property  cannot  indeed  be 
sion  and  use  and  enjoy  the  same  created  without  authority  of  the 
imtil   default.     While   so   in   pos-  owner.    Hollingsworth  v.  Dow,  19 


122 


ORDINARY  BAILMENTS. 


[§  161. 


§  161.  Agisters  and  livery-stable  men,  no  lien  at  common 
law. — It  is  because  of  this  principle  of  law  that  a  common-law 
lien  has  by  the  great  weight  of  authority  been  denied  to  agis- 
ters and  livery-stable  men.  It  is  said  that  they  are  merely  keep- 
ers of  the  animals  intrusted  to  them,  not  imparting  substantial 
benefit  or  betterment  as  does  the  workman  who  repairs  the  chat- 
tel. Nor  are  they  under  any  obligation  to  take  the  animals  into 
their  care  and  keeping;  no  such  obligation  or  duty  resting  upon 
them,  as  is  imposed  in  case  of  innkeepers  and  common  carriers. 

The  agister,  or  liveryman,  is  at  liberty  to  do  as  he  pleases  as  to 
taking  the  animals,  and  if  he  takes  them  may  impose  such  terms 
and  conditions  as  he  chooses.  He  may  demand  his  pay  in  ad- 
vance, or  may  by  contract  create  a  lien  upon  the  property  for 
it.2» 


Pick.  228;  Globe  Works  v.  Wright, 
106  Mass.  207.  But  in  the  present 
case  such  an  authority  must  be 
implied  from  the  facts  agreed. 
The  subject  of  the  mortgage  is  a 
hack,  that  is  to  say,  a  carriage 
let  for  hire,  described  in  the  mort- 
gage as  "now  in  use"  at  certain 
stables;  and  which,  as  the  parties 
have  agreed  in  the  case  stated, 
the  mortgagor  retained  posses- 
sion of  and  used  agreeably  to  the 
terms  of  the  mortgage.  It  was 
the  manifest  intention  of  the  par- 
ties that  the  hack  should  con- 
tinue to  be  driven  for  hire,  and 
should  be  kept  in  a  proper  state 
of  repair  for  that  purpose,  not 
merely  for  the  benefit  of  the 
mortgagee,  but  for  that  of  the 
mortgagor  also,  by  preserving  the 
value  of  the  security,  affording  a 
means  of  earning  wherewithal  to 
pay  off  the  mortgage  debt.  The 
case  is  analogous  to  those  in 
which  courts  of  common  law,  as 
well  as  of  admiralty,  have  held, 
upon  general  principles,  independ- 
ently of  any  provision  of  statute, 
that  liens  for  repairs  made  by 
mechanics   upon  vessels   in  their 


possession  take  precedence  of 
prior  mortgages.  Williams  v.  All- 
sup,  10  C.  B.  (N.  S.)  417;  The 
Scio,  L.  R.  1  Adm.  &  Eccl.  353, 
355;  The  Granite  State,  1  Spr. 
277;  Donnell  v.  The  Starlight,  103 
Mass.  227,  233;  The  St.  Joseph,  1 
Brown,  Adm.  202. 

29  Cross  V.  Wilkins,  43  N.  H.  332. 
In  Millikin  v.  Jones,  77  111.  372,  the 
court  below  instructed  the  jury 
that  "the  plaintiff  had  no  lien 
upon  the  cattle  for  pasturage; 
that  the  law  does  not  give  a  lien 
on  the  stock  for  pasturage  unless 
there  is  a  special  contract  that 
the  stock  should  be  especially 
held  for  the  pasturage."  The  su- 
preme court  held  this  to  be  cor- 
rect. Goodrich  v.  Willard  et  al., 
7  Gray  (Mass.),  183.  The  court 
say:  "The  sole  question  on  these 
exceptions  is  whether  an  agister 
of  cattle  has  a  lien  on  them  for 
their  keeping.  He  has,  by  the  law 
of  Scotland  (2  Bell,  Com.  110); 
but  the  common-law  authorities 
are  uniform  that  he  has  not,  ex- 
cept by  special  agreement  with 
the  owner.  No  such  agreement 
appears  in  this  case,  and  the  rul- 


§  161.] 


LOCATIO  OPERIS  BAILMENTS. 


123 


In  an  early  case  in  Vermont,  Cummings  v.  Harris,  the  court 
giving  its  views  for  the  reason  of  the  rule  says:  "The  usual 
cases  in  which  the  law  creates  a  lien  are,  where  the  person  per- 
forming services  would  have  no  other  sure  remedy:  as  a  black- 
smith shoeing  a  horse  for  a  stranger;  or  a  watchmaker  cleaning 
a  watch  for  a  stranger ;  or  an  innkeeper  furnishing  entertainment 
for  travelers;  and,  where  the  persons  applying  for  their  services 
are  not  strangers,  the  usage  of  their  deal  may  be  such  that  the 
law  will  create  a  lien.  For  instance,  the  course  of  their  deal  may 
be  that  payment  for  the  services  is  always  made  before  the  prop- 


ing  at  the  trial  must  therefore  be 
sustained.  Chapman  v.  Allan,  Cro. 
Car.  271;  Jackson  v.  Cummins,  5 
M.  &  W.  342;  Cross  on  Lien,  25, 
332;  2  Saund.  PI.  &  Ev.  (2d  ed.) 
299;  1  Dane,  Abr.  232;  2  Kent, 
Com.  (6th  ed.)  634,  note;  Grinnell 
V.  Cook,  3  Hill,  491,  492;  Miller  v. 
Marston,  35  Me.  153.  We  notice 
in  the  editions  of  Story  on  Bail- 
ments which  have  been  published 
since  the  author's  decease,  that 
this  settled  rule  of  law  is  put  (we 
know  not  why)  under  a  "query," 
in  a  note  to  section  443.  It  was 
not  so  in  the  editions  published 
during  his  life."  Lewis  v.  Tyler, 
23  Cal.  364.  In  this  case  the  court 
discusses  the  question  of  the  rea- 
son for  giving  to  the  agister  no 
common-law  lien.  The  court  say: 
"The  general  principle  is,  that 
where  the  law  compels  a  person, 
such  as  an  innkeeper  or  common 
carrier,  to  take  the  care  and  cus- 
tody of  goods,  he  shall  have  a  lien 
upon  the  goods  for  his  reasonable 
and  just  charges  therefor;  and 
the  same  rule  applies  to  a  person 
who,  by  his  labor  and  skill,  has 
imparted  an  additional  value  to 
the  goods.  Grinnell  v.  Cook,  3 
Hill,  491.  But  one  who  merely  pro- 
vides food  and  takes  the  care  of 
an  animal,  as  an  agister  or  livery- 
stable  keeper,  has  no  lieu  on  the 


property,  unless  there  be  a  special 
agreement  to  that  effect."  Bissell 
V.  Pierce,  28  N.  Y.  252.  The  court 
held  that  "The  law,  in  the  ab- 
sence of  any  special  agreement, 
will  not  give  to  a  farmer  who 
pastures  horses  for  hire,  a  lien 
upon  the  horses  for  the  price  of 
keeping  them.  The  certificate  of 
the  town  clerk  in  whose  office  a 
chattel  mortgage  is  filed,  stating 
that  a  paper  is  a  copy  of  the  orig- 
inal mortgage,  is  no  proof  of  the 
existence  of  the  mortgage.  That 
must  be  produced  and  proved,  or 
its  non-production  accounted  for, 
so  as  to  authorize  secondary  evi- 
dence. Nor  is  the  certificate  of 
the  town  clerk  any  evidence  that 
the  paper  purporting  to  be  a  copy 
of  the  mortgage  is  a  copy.  The 
mortgage,  and  its  contents,  must 
be  proved  by  common-law  evi- 
dence." McCoy  V.  Hock,  37  Iowa, 
436,  held  that  under  a  contract  for 
wintering  cattle,  stipulating  that 
the  expressed  amount  thereof 
shall  be  paid  before  moving  the 
cattle  from  the  agister's  farm,  he 
is  entitled  to  retain  them  until 
paid  the  agreed  amount.  Jones  on 
Liens,  sec.  641;  Cross  v.  Wilkins, 
43  N.  H.  332;  Wright  v.  Sherman, 
3  S.  Dak.  290;  McGhee  v.  Ed- 
wards, 87  Tenn.  506. 


124  OBDINAEY  BAILMENTS.  [§  161. 

erty  is  taken  away.  But  where  the  business  is  done  under  a  per- 
sonal contract  the  law  implies  no  lien ;  but  the  parties  may  so 
form  their  contract  as  to  create  a  lien,  which  the  law  will  en- 
force, "^o 

And  in  Grinnell  v.  CooJc,  Bronson,  J.,  said  in  the  opinion :  ' '  The 
right  of  lien  has  always  been  admitted  where  the  party  was  bound 
by  law  to  receive  the  goods ;  and  in  modem  times  the  right  has 
been  extended  so  far  that  it  may  now  be  laid  down  as  a  general 
rule,  that  every  bailee  for  hire  who  by  his  labor  and  skill  has 
imparted  an  additional  value  to  the  goods  has  a  lien  upon  the 
property  for  his  reasonable  charges.  This  includes  all  such  me- 
chanics, tradesmen  and  laborers  as  receive  property  for  the  pur- 
pose of  repairing,  or  otherwise  improving  its  condition.  But  the 
rule  does  not  extend  to  a  livery-stable  keeper,  for  the  reason  that 
he  only  keeps  the  horse,  without  imparting  any  new  value  to  the 
animal.  And  besides,  he  does  not  come  within  the  policy  of  the 
law,  which  gives  the  lien  for  the  benefit  of  trade.  Upon  the  same 
reasons  the  agister  or  farmer  who  pastures  the  horses  or  cattle 
of  another  has  no  lien  for  their  keeping,  unless  there  be  a  special 
agreement  to  that  efiPect.^^ 

The  supreme  court  of  Pennsylvania  has  not  indorsed  this 
doctrine,  but  in  the  face  of  the  great  weight  of  authority  has  held 
that  the  agister  has  a  common-law  lien  upon  the  animals  for 
their  keep.  They  have  followed  the  reasoning  of  Chief  Jus- 
tice Gibson  in  Steinman  v.  Wilkiiis,^^  an  early  case,  and  one 
who  reads  it  cannot  help  but  recognize  that  it  is  well  reasoned 
if  it  has  not  been  generally  followed.  He  says:  "From  the 
case  of  a  chattel  bailed  to  acquire  additional  value  by  the  labor 
or  skill  of  an  artisan,  the  doctrine  of  specific  lien  has  been 
extended  to  almost  every  case  in  which  the  thing  has  been  im- 
proved by  the  agency  of  the  bailee.  Yet,  in  the  recent  case  of 
Jackson  v.  Cummings  (5  Mees.  &  Welsh.  342),  it  was  held  to 
extend  no  further  than  to  cases  in  which  the  bailee  has  directly 
conferred  additional  value  by  labor  or  skill,  or  indirectly  by  the 
instrumentality  of  an  agent  under  his  control;  in  supposed  ac- 
cordance with  which  it  was  ruled  that  the  agistment  of  cattle 
gives  no  lien.  But  it  is  difficult  to  find  an  argument  for  the  po- 
sition that  a  man  who  fits  an  ox  for  the  shambles,  by  fattening  it 

30  Cummings    v.    Harris,    3    Vt.  3i  Grinnell  v.   Cook,   3   Hill    (N. 

244.  Y.),  485,  38  Am.  Dec.  206. 

32  7  Watts  &  Serg.  466. 


■■§   161.]  LOCATIO  OPERIS  BAILMENTS.  125 

with  his  provender,  does  not  increase  its  intrinsic  value  by 
means  exclusively  within  his  control.  There  are  certainly  cases 
of  a  different  stamp,  particularly  Bevan  v.  Waters  (Mood.  & 
Malk.  235),  in  which  a  trainer  was  allowed  to  retain  for  fitting  a 
race-horse  for  the  turf.  In  Jackson  v.  Cummings  we  see  the  ex- 
piring embers  of  the  primitive  notion  that  the  basis  of  the  lien  is 
intrinsic  improvement  of  the  thing  by  mechanical  means ;  but  if 
we  get  away  from  it  all,  what  matters  it  how  the  additional  value 
has  been  imparted,  or  whether  it  has  been  attended  with  an  al- 
teration in  the  condition  of  the  thing?  It  may  be  said  that  the 
condition  of  a  fat  ox  is  not  a  permanent  one;  but  neither  is  the 
increased  value  of  a  mare  in  foal  permanent;  yet  in  Searfe  v. 
Morgan  (4  Mees.  &  Welsh.  270),  the  owner  of  a  stallion  was  al- 
lowed to  have  a  lien  for  the  price  of  the  leap.  The  truth  is,  the 
modern  decisions  evince  a  struggle  of  the  judicial  mind  to  escape 
from  the  narrow  confines  of  the  earlier  precedents,  but  without 
having  as  yet  established  principles  adapted  to  the  current  trans- 
actions and  convenience  of  the  world.  Before  Chase  v.  Westmore 
(5  Maule  &  Selw.  180),  there  was  no  lien  even  for  work  done 
under  a  special  agreement;  now,  it  is  indifferent  whether  the 
price  has  been  fixed  or  not.  In  that  case,  Lord  Ellenborough, 
alluding  to  the  old  decisions,  said  that  if  they  '  are  not  supported 
by  law  and  reason,  the  convenience  of  mankind  certainly  re- 
quires that  our  decisions  should  not  be  goverened  by  them;'  and 
Chief  Justice  Best  declared  in  Jacobs  v.  Latour  (5  Bingh.  132), 
that  the  doctrine  of  lien  is  so  just  between  debtor  and  creditor 
that  it  cannot  be  too  much  favored.  In  Kirkham  v.  Shawcross 
(6  T,  R.  17),  Lord  Kenyon  said  it  had  been  the  wish  of  the 
courts,  in  all  cases  and  at  all  times,  to  carry  the  lien  of  the 
common  law  as  far  as  possible;  and  that  Lord  Mansfield  also 
thought  that  justice  required  it,  though  he  submitted  when  rigid 
rules  of  law  were  against  it. ' ' 

The  Pennsylvania  court  has  followed  this  doctrine  to  the 
present  time.     In  the  case  of  Yearsely  v.  Gray,^^  decided  in  Feb- 

33  140  Pa.  St.  238.  In  the  last  86  Pa.  St.  486.  This  is  because  the 
case  cited  the  court  says:  "It  is  agister  has  a  common-law  lien  for 
a  well-settled  rule  of  law  that  an  its  keep.  And  it  is  equally  well 
agister  is  not  bound  to  restore  a  settled  that,  where  there  is  an  en- 
horse  which  he  has  taken  to  pas-  tire  contract  for  the  keep  of  a 
ture  until  his  compensation  is  number  of  horses  or  other  ani- 
paid  or  tendered.  Megee  v.  Beirne,  mals,  the  agister  has  a  lien  on 
39  Pa.  St.  50;  Mathias  v.  Sellers,  them  all,  not  only  for  their  pro- 


126  ORDINAEY  BAILMENTS.  [§   163. 

ruary,  1891,  many  interesting  cases  will  be  found  cited  in  the 
opinion  and  in  the  brief  of  counsel  for  the  appellee. 

§  162.  Lien  by  statute. — In  most  of  the  states  this  M^hole  ques- 
tion is  regulated  by  statutes  giving  to  the  agister,  the  liveryman, 
the  farmer,  the  ranchman,  and  those  who  keep  and  care  for  cat- 
tle, sheep,  horses  and  other  animals,  a  lien  upon  the  animals  so 
kept  and  cared  for,  for  their  keep. 

§  163.  Chattel  mortgage  takes  precedence  over  lien. — The 
question  as  to  whether  a  chattel  mortgage  which  is  duly  filed  or 
recorded  as  required  by  the  statute  shall  take  precedence  over 
the  lien  of  an  agister  created  by  statute  has  been  before  the  courts 
in  several  cases.  This  presents  a  very  different  case  from  the  one 
discussed  in  the  preceding  sections.  There  the  question  was  one 
of  benefit  and  betterment  to  the  subject  of  the  bailment,  and  of- 
ten one  of  necessity;  here  that  question  is  not  involved,  and  so 
the  weight  of  authority  is  that  a  chattel  mortgage  which  has  been 
properly  executed,  filed  or  recorded  as  the  law  requires  will  take 
precedence  over  the  lien  of  the  agister.  It  is  based  upon  the  prin- 
ciple that  the  mortgage,  having  been  executed  and  properly  filed, 
becomes  a  public  record,  and  the  law  presumes  that  every  one  has 
notice  of  its  existence  and  of  the  lien  it  creates;  that  therefore 
the  agister  had  notice  of  the  existence  of  this  lien  before  he  de- 
voted the  care  and  furnished  the  supply  of  feed  to  the  animals 
bailed  to  him. 

In  a  South  Dakota  case  ^*  the  mortgage  was  duly  executed  and 
filed  in  the  olfice  of  the  register  of  deeds  of  the  proper  county 
as  required  by  the  statute.    Subsequent  to  that  time  the  mort- 

portionate   part  of   the   sum   due  left  were  more  than  adequate  to 

for  the  keep   of  all,   but  for  the  secure  the  unpaid  bill.    This  may 

entire   amount  due   upon   all   the  be   so,   but   the   defendant  had   a 

animals  embraced  in  the  contract.  right   to   all   the   security   in   his 

Young  V.  Kimball,  23  Pa.  St.  193;  hands,  and  this  right  could  not  be 

Hensel  v.  Noble,  95  Pa.  St.  345.   In  taken  from  him  at  the  will  of  the 

this  case  the  defendant  had  taken  plaintiffs.      If,    in    the    opinion    of 

a  number  of  plaintiffs'  horses  and  the     latter,     the     defendant     had 

cows  to  pasture,  for  a  compensa-  more    security    than    was    neces- 

tion  agreed  upon.     The  plaintiffs  sary,  the  obvious  remedy  was  to 

attempted  to  take  away  one  of  the  pay  for  their  cattle  and  take  them 

horses  without  paying  or  offering  away.     We   know   of  no   case   in 

to  pay  for  its  keep.     The  defend-  which   a    debtor   can    require    his 

ant  denied   their   right  to  do   so,  creditor  to  give  up  a  portion  of 

and  the  plaintiffs  brought  replevin  his   security  without   payment  of 

for  the   horse.     Their  contention  the  debt." 
was  that  the  animals   that  were  34  Wright  v.  Sherman,  17  L.  R. 


§    163.]  LOCATIO  OPERIS  BAILMENTS.  127 

gagor,  being  in  possession  of  the  stock,  left  them  with  the  de- 
fendant to  be  fed  and  taken  care  of.  The  defendant  kept  and 
fed  the  stock  without  any  knowledge  on  the  part  of  the  plaintiff, 
the  mortgagee,  and  received  no  pay.  Therefore,  when  the  action 
was  brought  by  the  plaintiff  to  get  possession  of  the  stock  under 
his  mortgage,  the  question  of  priority  between  the  two  liens  was 
presented.  The  court  say:  "When  defendant  took  this  stock  to 
pasture  he  took  it  knowing  (for  the  filing  of  the  mortgage  notified 
him)  that  plaintiff  had  a  mortgage  upon  it  to  secure  an  indebted- 
ness not  yet  due.  He  knew  that  such  mortgage  constituted  an  ex- 
isting lien  upon  such  stock  at  the  time  he  took  it  to  pasture. 
(Citing  statute.)  He  knew  that  plaintiff  had  a  right,  whenever 
he  might  choose  to  do  so,  to  take  possession  of  the  stock,  for  the 
mortgage,  of  which  he  had  notice,  so  provided.  He  knew,  for 
the  said  section  4358  so  declares,  that  no  person  whose  interest  is 
subject  to  the  lien  of  the  mortgage  may  do  any  act  which  will 
substantially  impair  the  morgagee's  security;  he  knew  that  to 
just  the  extent  that  another  charge  was  put  upon  the  property 
prior  to  plaintiff's  mortgage,  his  security  would  be  impaired.  He 
knew  that  under  the  law  and  terms  of  the  mortgage  the  mort- 
gagors were  entitled  to  the  possession  of  the  stock,  and  that  in 
reason  and  according  to  custom  the  mortgagors  so  in  possession 
would  be  expected  to  care  for  and  feed  them.  For  the  purpose 
of  determining  his  right  in  this  matter  he  knew  all  these  facts  as 
well  as  though  he  had  be^n  personally  and  actually  informed  of 
them  at  the  very  time  he  took  the  stock. ' ' 

In  the  case  of  Chapman  v.  First  Nat.  Bank,^^  the  question 
arose  as  to  whether  a  lien  created  by  statute  in  favor  of  livery- 
stable  keepers  for  the  keeping  and  feeding  of  stock  should  have 
precedence  over  a  mortgage  on  the  animals  previously  given  by 
their  owner ;  and  in  that  case  it  was  held  that  ' '  A  statute  giving 
livery-stable  keepers  a  lien  for  the  keeping  of  animals  placed  in 
their  charge  without  the  knowledge  or  consent  of  the  mortgagee 
does  not  make  such  lien  superior  to  that  of  a  prior  duly-recorded 
mortgage  on  the  animals,  even  though  the  law-day  has  passed  and 
the  animals  are  still  in  the  mortgagor's  possession."  In  this  case 
there  is  a  large  number  of  cases  cited  both  in  briefs  and  in  the 
opinion  of  the  court. 

A.  792;   Johnson  v.  Hill,  3  Stark.       Hill  (N.  Y.),485;  Bissell  v.  Pierce, 

172;    Broadwood    v.    Granasa,    10       28  N.  Y.  252. 

Exch.    417;     Grinnell    v.    Cook,    3  35  98  Ala.  528,  22  L.  R.  A.  78. 


CHAPTER  XL 

LOCATIO  CUSTODI^. 


§  164.  The  letting  of  care  and  cus- 
tody of  the  thing  for 
hire. 

165.  What  this  subdivision  em- 

braces. 

166.  Depositum. 

167.  Warehouseman. 

168.  Public  warehouses. 

169.  Bonded  warehouses. 

170.  All    warehouses    public    or 

guasi-puhlic. 

171.  Delivery — To  create  liabil- 

ity. 

172.  A  sale  or  a  bailment. 

173.  The  warehouse  receipt. 

174.  At    common    law    a    ware- 

house receipt  in  a  tech- 
nical sense  is  not  nego- 
tiable. 

175.  Negotiability  of  receipt  pro- 

vided by  statute. 

176.  Warehouseman  not  permit- 

ted to  impeach  his  re- 
ceipt. 

177.  Warehousemen  may  insure 

the  property. 

178.  Usage  and  general  course 

of  business  to  a  certain 
extent  defines  the  duty  of 
warehouseman  as  bailee. 

179.  Storage-house  keepers. 

180.  Must  comply  with  the  con- 

tract for  storage. 

181.  Some  of  the  duties  of  the 

bailor. 

182.  Dangerous  articles. 

183.  When   the   liability   of   the 

storage-house  keeper  be- 
gins. 

184.  When  the  liability  ends. 


§  185.  Storage-house  keepers  and 
warehousemen  the  same. 

186.  Common    carriers,    when 

warehousemen. 

187.  As  to  goods  awaiting  deliv- 

ery. 

188.  The  New  Hampshire 

rule. 

189.  The    third    class    of 

cases. 

190.  Wharfingers. 

191.  When   the  liability  begins. 

192.  When  the  liability  ends. 

193.  Factors  or  commission  mer- 

chants. 

194.  Safe  deposit  and  trust  com- 

panies. 

195.  The    relation    between    the 

depositor   and    the   safe- 
deposit  company. 

196.  The  nature  of  the  relation 

—  The    liability    of    the 
parties. 

197.  Other  classes  of  cus- 
todians. 

198.  Liability  of  bailee  in  custo- 

dian bailments. 

199.  When     does     the     liability 

commence  and  end. 

200.  Proper   place   and   kind   of 

storage. 

201.  Diligence   must   keep   pace 

with  improvements. 

202.  Proof  of  negligence. 

203.  Does  the  burden  of  proof 

of  negligence  shift. 

204.  The    question    summed    up 

and  the  rule  settled. 

205.  Contributory  negligence. 

206.  Negligence  of  servants. 


§  166.] 


LOCATIO   CUSTODI^. 


129 


207.  Unauthorized   use    of   chat- 

tels. 

208.  Delivery,  misdelivery,  non- 

delivery. 

209.  Confusion  of  goods. 

210.  Criminal  liability. 


§  211.  Termination. 

212.  Conversion. 

213.  Compensation — ^Lien. 

214.  Action    against    the    ware- 

houseman. 


§  164.  The  letting  of  care  and  custody  of  the  thing  for  hire. 

This  is  one  of  the  mutual-benefit  bailments,  or  more  particularly- 
speaking,  one  of  the  "hiring"  or  "locatio"  bailments,  and  the 
general  rule  governing  liability,  where  the  bailment  is  for  the 
benefit  of  both  parties,  obtains.  The  bailor  and  bailee  are  held 
to  ordinary  diligence  and  are  liable  for  ordinary  negligence. 

§  165.  What  this  subdivision  embraces. — It  would  be  diffi- 
cult to  mention  and  discuss  all  of  the  different  kinds  of  bailments 
embraced  in  this  classification ;  attention  can  only  be  directed  to 
some  of  the  more  important  subdivisions. 

For  convenience  in  considering  it,  the  subject  of  custody  bail- 
ments is  divided  into  four  general  heads. 

First:  "Warehouses  and  warehousemen;  which  include  storage- 
houses  and  storagehouse  keepers,  elevators  and  elevator  men,  and 
common  carriers  when  holding  property  in  storage. 

Second:  "Wharfingers,  and  under  certain  circumstances  factors 
and  commission  merchants. 

Third:  Safe  deposit  vaults  and  trust  companies,  banks  and 
bank  deposit  vaults. 

Fourth:   Other  custodians. 

§  166.  Depositum. —  "While  a  depositmn,  a  mere  naked  bail- 
ment, belongs  to  a  class  of  custody  bailments,  it  is  a  gratuitous 
undertaking,  and  has  already  been  discussed.^  It  does  not  belong 
to  the  class  of  bailments  under  consideration,  the  locatio  or  the 
hiring  bailments,  as  they  are  classified  with  the  mutual  benefit 
bailments,  or  bailments  for  hire. 


First. 

§  167.  Warehouseman. — A  warehouseman  is  a  person  other 
than  the  owner  who  receives  goods  and  merchandise  to  be  stored 
in  his  warehouse  for  hire.^    From  this  definition  it  may  be  seen 


T^Ante,  §  86. 

2  Bouvier,    Law    Diet.;     Bucher 
v.  Com.,  103  Pa.  St.  528;    Moorse 

9 


V.   Jagode,   195   Pa.   St.   1G3;    Sny- 
dacker  v.  Blatchley,  177  111.  506. 


130  ORDINARY  BAILMENTS.  [§    168. 

that  this  comprises  a  large  and  important  class  of  business :  those 
who  follow  the  business  of  furnishing  storage  of  chattels  for  hire, 
such  as  the  storing  of  grain  or  furniture  or  freight,  as,  for  ex- 
ample, the  common  carriers  who  furnish  storage  for  freight  that 
is  often  left  beyond  the  limit  of  time  for  which  they  are  liable  as 
common  carriers;  the  proprietors  of  flouring  mills  who  store 
grain  for  their  customers,  and  others  who,  directly  or  indirectly, 
become  custodians  of  property  and  receive  compensation  there- 
for. 

In  Owen  v.  Boyle  ^  the  court  in  its  opinion  used  this  language : 
"The  building  or  apartment  where  the  salt  was  stored  was  used 
and  appropriated  by  the  occupant  not  for  the  deposit  and  safe- 
keeping or  selling  of  his  own  goods,  but  for  the  purpose  of 
storing  the  goods  of  others  placed  there  in  the  regular  course  of 
commercial  dealing  and  trade,  to  be  again  removed  or  re-shipped, 
and  the  building  or  apartment  had  acquired  the  character  of  a 
warehouse. ' ' 

The  court  in  the  case  of  Reg.  v.  Hill,*  an  English  case,  defined 
a  warehouse  to  be  a  place  where  one  stores  or  keeps  goods  which 
are  not  immediately  wanted  for  sale. 

§  168.  Public  warehouses. — In  some  of  the  states  statutes 
have  been  enacted  making  certain  warehouses  public  warehouses, 
X-)utting  upon  them  a  requirement  analogous  to  the  requirement 
of  innkeepers  and  carriers,  namely,  that  they  shall  receive  and 
care  for  the  property  presented  for  storage,  subject,  of  course,  to 
the  limitation  that  it  is  fit  for  storage,  and  that  the  price  must  be 

3  22  Me.  47.  The  business  of  his  shop,  and  the  goods  stolen  were 
maintaining  stock-yards  for  the  in  that  cellar.  There  was  no  inner 
reception  of  cattle  belonging  to  communication  between  the  house 
others  than  the  proprietors  of  the  and  the  cellar,  but  the  cellar  was 
yards  has  been  held  to  be  analo-  entered  by  a  stairway  from  the 
gous  to  the  business  of  warehouse-  street.  It  was  objected  for  the 
men.  Del.,  L.  &  W.  R.  Co.  v.  Cen-  prisoner  that  such  cellar  was  not 
tral  Stock  Yard  T.  Co.,  19  Atl.  185  a  warehouse  under  the  statute. 
(N.  J.).  Rolfe,  B.,  said:     "A  warehouse  in 

4  2  M.  &  Rob.  458.  The  prison-  common  parlance  meant  a  place 
ers  were  indicted  under  the  statute  where  a  man  stored  or  kept  his 
for  breaking  and  entering  a  ware-  goods  which  were  not  immediately 
house.  It  appeared  that  the  prose-  wanted  for  sale,  and  there  was  no 
cutor  occupied  a  shop;  in  a  cellar  reason  to  suppose  that  the  legisla- 
under  the  shop  he  kept  such  goods  ture  used  the  term  in  this  statute 
as  he  had  on  hand  at  the  time  of  in  a  sense  repugnant  to  its  ordi- 
the  auction  to  expose  for  sale  m  nary  meaning." 


§   169.]  LOCATIO  CUSTODI^.  131 

either  paid  or  tendered  if  demanded.  This,  however,  except  by 
statute  is  not  the  law ;  warehouses  as  a  rule  are  private  and  con- 
trolled by  their  owners.  The  reason  for  the  statutes  controlling 
warehouses  is  quite  fully  set  forth  in  the  opinion  of  the  court 
in  the  case  of  Nash  v.  Page.^  The  court  say:  "When  he  under- 
takes ...  to  conduct  the  business  as  a  public  warehouseman,  he 
assumes  an  obligation  to  serve  the  entire  public,  and  has  no  right 
to  select  his  bidders  or  to  refuse  to  receive  the  tobacco  of  the 
producer  when  shipped  to  him.  This  obligation  exists  not  only 
by  reason  of  the  statute,  but  under  the  rule  of  common  law. 
We  perceive  no  difference  between  this  character  of  warehouses 
and  that  of  wine  warehouse  or  grain  warehouses,  and  the  rule 
applied  to  the  latter  required  them  to  discharge  the  duty  of  re- 
ceiving the  wine  and  grain  shipped  to  them  by  the  owner.  This 
is  the  first  time  in  the  history  of  the  state  that  warehousemen 
controlled  and  regulated  in  their  business  by  legislation  have 
asserted  their  right  to  select  their  customers,  including  both  the 
producer  and  the  buyer." 

In  some  of  the  courts  it  has  been  held  that  warehouses  which 
receive  grain  and  commodities  that  are  alike  and  mix  them, 
issuing  receipts  for  the  same,  selling  and  shipping  from  the 
common  mass,  are  public  warehouses.  But  generally  these 
opinions  have  been  founded  upon  the  statutes  of  the  particular 
states.  The  constitution  of  the  state  of  Illinois,  article  XIII, 
title  Warehouses,  defines  in  the  following  language  public  ware- 
houses: ''All  elevators  or  storehouses  where  grain  or  other 
property  is  stored  for  compensation,  whether  the  property 
stored  be  kept  separate  or  not,  are  declared  to  be  public  ware- 
houses. "  ^  It  may,  however,  be  generally  said  that  where  there 
is  no  statute  or  constitutional  provision  which  requires  certain 
warehouses  to  be  public  warehouses,  a  warehouseman  is  not  re- 
quired by  any  general  rule  of  law  to  receive  goods  for  storage 
against  his  will,  but  that  the  relation  of  warehouseman  grows 
out  of  the  contract  relation  of  bailor  and  bailee,  and  is  not  anal- 
gous  to  an  innkeeper  or  common  carrier.'^ 

§  169.  Bonded  warehouses. — ^Bonded  warehouses  are  ware- 
houses that  are  designated  by  the  secretary  of  the  treasury 
of  the  United  States  in  which  are  to  be  stored  merchandise  im- 

5  80  Ky.  539.  7  Delaware,  etc.  R.  Co.  v.  Cen- 

e  National  Bank  v.  Langdon,  28  tral  Stock  Yards  Co.,  45  N.  J.  Eq. 
111.  App.  401.  50. 


132  ORDINARY  BAILMENTS.  [§    170. 

ported  into  the  United  States  until  sucli  time  as  the  customs 
duty  shall  be  paid.  Such  warehouses  are  usually  private,  and 
are  in  the  custody  and  control  of  the  owners  and  some  customs 
officer  designated  to  act  for  the  United  States.  The  government, 
however,  assumes  no  responsibility  for  the  safe-keeping  of  the 
merchandise,  stored  in  them,  and  merchandise  so  deposited  may 
be  withdrawn  at  any  time  within  one  year  upon  the  payment  of 
the  duties  and  charges;  and  after  one  year  until  the  expiration 
of  three  years  on  payment  of  the  duty  and  charges  and  ten  per 
centum  per  annum  in  addition.^ 

While  the  United  States  does  not  assume  any  responsibility 
for  the  safe-keeping  of  the  merchandise,  the  owner  of  the  ware- 
house is  under  the  same  obligation  and  liability  as  any  other 
warehouseman,  and  is  answerable  to  the  owner  of  the  goods  to 
the  extent  of  such  liability.^ 

In  Macklin  v.  Fraser  ^°  the  court  say :  ' '  Without  referring  in 
detail  to  the  laws  of  congress  regulating  the  rights,  duties  and 
powers  of  the  keepers  of  bonded  warehouses,  we  hold  that  the 
appointment  by  the  internal  revenue  department  of  store-keepers 
who  are  invested  with  the  joint  custody,  with  the  warehousemen, 
of  the  warehouses  and  the  goods  stored  therein,  does  not  lessen 
in  any  degree  the  diligence  which  the  latter  as  bailees  for  hire 
are  by  the  general  laws  required  to  exercise  to  prevent  fire  from 
being  communicated  to  their  houses  or  to  the  goods  in  their 
custody.  The  right  of  the  storekeeper  to  ingress  into  the  ware- 
house for  the  discharge  of  certain  duties  imposed  upon  him  by 
law  does  not  exonerate  the  warehouseman  from  the  use  of  at 
least  ordinary  diligence  in  preventing  the  goods  stored  therein 
from  being  damaged  or  destroyed  by  the  recklessness  or  care- 
lessness of  that  officer." 

§  170.  All  warehouses  public  or  quasi  public. — The  states 
generally  have  enacted  statutes  regulating  the  warehouse  busi- 
ness, and  in  many,  if  not  most  of  the  states,  warehouses  are  made 
public  agencies  to  be  controlled  by  the  laws  of  the  state,  somewhat 
as  the  law  controls  innkeepers  and  common  carriers,  making  it  in- 
cumbent upon  them  to  receive  all  grain  or  produce  or  property  in 


8U.  S.  R.  S.,  §§  2954-3008.  Fairfax  v.  Central  R.  Co.,  67  N.  Y. 

eClaflin  v.  Myer,  75  N.  Y.  260;       11. 

10  9  Eush  (Ky.),  3. 


§    170.]  LOCATIO   CUSTODI^.  133 

their  line  fit  to  be  stored,  on  pajoneut  of  the  price  for  storage,  reg- 
ulating the  conduct  of  the  business,  fixing  the  price  to  a  certain 
extent  and  determining  the  duties  and  liabilities  of  the  proprie- 
tors.^^ 

These  statutes  have  been  held  by  the  courts  both  state  and 
federal  to  be  constitutional,  for  the  reason  among  other  things, 
that  the  warehousemen  engaged  in  the  enterprise  of  receiving, 
storing,  loading  and  shipping  the  immense  products  of  the  coun- 
try, especially  of  the  west  and  northwest,  which  furnishes  the 
east,  and  contributes  very  largely  to  foreign  markets,  are  en- 
gaged in  a  public  business,  and  the  interests  of  the  public  de- 
mand that  they  should  be  regulated  by  law.  It  has  been  fre- 
quently held  that  "whenever  a  person  pursues  a  public  calling, 
and  sustains  relations  to  the  public  that  the  people  must  of  neces- 
sity deal  with  him,  and  are  under  a  moral  duress  to  submit  to 
his  terms  if  he  is  unrestricted  by  law,  then  in  order  to  prevent 
extortion  and  an  abuse  of  his  position,  the  price  he  may  charge 
for  his  services  may  be  regulated  by  law,"  and  as  well  may  his 
duties,  if  a  warehouseman,  as  to  receiving,  caring  for  and  dis- 
charging goods  and  chattels,  and  his  other  relations  to  the  pub- 
lic in  that  business  be  the  subject  of  statutory  enactment.^^ 

Although  the  ownership  of  the  property  may  be  private,  in  a 
strict  legal  sense  the  use  is  public;  hence  the  expressions  so  fre- 

11  Brass  v.   Stoesner,  153  U.   S.  the  seashore  may  be  a  virtual  mo- 

391;  Munn  v.  Illinois,  94  U.  S.  113.  nopoly. 

This  case  has  been  very  generally  "Under  such  circumstances  it 
followed.  Chief  Justice  Waite  de'  it  difficult  to  see  why,  if  the  com- 
livered  the  opinion  of  the  court.  mon  carrier  or  the  innkeeper 
After  calling  attention  to  the  im-  .  .  .  are  pursuing  a  public  em- 
mense  grain  trade  of  the  west  ployment  and  exercising  a  sort  of 
and  northwest  taken  care  of  in  public  office,  those  plaintiffs  do 
the  city  of  Chicago,  where  grain  not.  They  stand  at  the  very  gate- 
is  taken  from  cars  and  boats  ways  of  commerce  and  take  toll 
through  the  great  elevators  of  the  from  all  who  pass.  Their  busi- 
warehousemen,  stored  and  cared  ness  most  certainly  tends  to  a 
for,  and  reloaded  and  reshipped  common  charge,  and  is  because 
for  the  markets  selected,  the  a  thing  of  public  interest  and  use 
court  say:  "Thus  it  is  apparent  .  .  .  Certainly  if  any  business 
that  all  the  elevating  facilities  can  be  clothed  with  a  public  in- 
through  which  these  vast  produc-  terest  and  cease  to  be  juris  privati 
tions  of  seven  or  eight  great  states  only,  this  has  been  done." 
of  the  west  must  pass  on  the  way  12  Ogden  v.  Saunders,  12  Wheat, 
to  four  or  five  of  the   states  on  259. 


134  ORDINARY  BAILMENTS.  [§    172. 

quently  used,  "public  wharves"  "public  houses"  "public  ware- 
houses. ' '  ^^ 

But  whether  regulated  by  statute  to  an  extent  that  they  are 
made  public  or  not,  we  cannot  escape  the  conclusion  that  a 
warehouse  carrying  on  a  general  business,  in  receiving,  storing, 
inspecting  and  shipping  large  quantities  of  produce  for  a  con- 
siderable portion  of  country  is  engaged  in  a  quasi-publie  busi- 
ness. 

§  171.  Delivery — To  create  liability. — The  liability  of  the 
warehouseman  can  only  be  created  by  a  delivery  of  the  property 
for  storage  that  is  to  be  stored  and  cared  for.  And  so  it  is  neces- 
sary that  the  property  should  come  fully  into  the  possession  of 
the  warehouseman  so  that  it  may  be  fully  under  his  control,  or 
the  control  of  his  servant  or  agent  as  bailee  and  custodian.  It 
is  not  really  necessary  that  the  property  should  be  stored  in  the 
warehouse  in  order  that  the  liability  of  the  warehouseman  should 
attach.  "Where  the  property  has  been  received  upon  his  prem- 
ises, and  is  under  his  control,  having  been  delivered  to  him 
expressly  or  by  implication,  so  that  it  may  be  said  that  it  has 
passed  from  the  possession  and  control  of  the  owner  and  bailor 
into  the  possession  and  control  of  the  warehouseman,  he  is  liable 
as  a  warehouseman ;  and  where  the  warehouseman  has  consented 
to  take  charge  of  the  goods  before  they  reached  his  warehouse, 
he  has  been  held  liable  from  that  moment.^* 

It  therefore  goes  without  saying,  if  there  has  been  no  delivery 
of  the  property  and  no  acceptance,  either  actual  or  constructive, 
there  would  be  no  liability  as  warehouseman, 

§  172.  A  sale  or  a  bailment. — In  determining  whether  the 
transaction  is  a  bailment  of  the  goods  for  custody,  or  constitutes 
a  sale  of  the  property,  the  court  must  discover  from  the  agree- 
ment and  undertaking  of  the  parties  their  real  intention.  If 
by  the  contract  express  or  implied  the  title  of  the  property  is 
transferred  to  the  warehouseman,  it  is  a  sale;  but  if  the  ex- 
pressed or  implied  intention  of  the  parties  is  to  transfer  the  pos- 
session merely,  which  is  to  be  returned,  either  in  kind  or  the  pro- 
duct thereof  to  the  bailor,  it  is  a  bailment. 

13  Olcott  V.  Supervisors,  16  Wall.  Story  on  Bailm.   (9th  ed.),  §  445; 

678;  Hannah  V.  People,  198  111.  77;  Merritt  v.   Old  Colony  R.   Co.,   11 

Central  Elevator  y.  People,  174  111.  Allen  (Mass.),  80;   Rogers  v.  Sto- 

203.  phel,    32    Pa.    St.    Ill;    Farrell    v. 

i4Ducker  v.  Barnett,  5  Mo.  97;  Richmond  R.  Co.,  102  N.  C.  390. 


§  173.]  LOCATIO  CUSTODI^.  135 

In  determining  this  question  when  involved  in  custody  con- 
tracts the  adjudicated  cases  may  be  divided  into  three  distinct 
classes. 

(1)  When  by  the  contract  the  intention  is  clearly  expressed 
or  implied  that  the  title  of  the  property  is  to  pass,  it  is  a  sale. 
(2)  Where  the  property  is  taken  to  be  kept  and  the  market 
price  paid  or  the  property  returned  at  the  option  of  the  ware- 
houseman, it  is  a  sale,  but  (3)  where  the  property  is  deposited 
with  and  accepted  by  the  warehouseman  the  market  price  to 
be  paid  or  the  property  returned  at  the  option  of  the  owner, 
it  is  generally  held  to  be  a  bailment.^^ 

A  general  discussion  of  this  subject  in  eases  of  ordinary  bail- 
ments has  already  been  had.^® 

§  173.  The  warehouse  receipt. — On  receipt  of  the  property 
the  warehouseman,  or  bailee,  usually  in  due  course  of  business 
delivers  to  the  bailor,  the  owner  of  the  property,  a  receipt  for 
the  same.  There  is  no  particular  form  of  receipt  required; 
usually  it  contains  the  date  the  property  is  received,  with  a  de- 
scription of  the  property,  from  whom  received,  and  an  agreement 
to  redeliver  the  property  on  demand  to  the  bailor  or  his  order. 

It  is  not  unusual  for  an  elevator  receipt  to  contain  an  agree- 
ment, in  connection  with  the  receipt,  providing  as  to  how  the 


15  In  the  following  cases  held  a  the  court  held  that  a  contract  ac- 
sale:  Woodward  v.  Seamans,  125  knowledging  the  receipt  of  grain 
Ind.  330,  21  Am.  St.  Rep.  225;  for  storage,  "loss  by  fire  and  the 
Ives  V.  Hartley,  51  111.  520.  And  elements  at  the  owner's  risk," 
where  the  plaintiff  knew  it  to  be  with  the  option  to  the  party  re- 
the  established  custom  of  the  ceipting  it  to  return  grain  of  equal 
warehouseman  to  mix  all  grain  test  and  value,  constitutes  a  con- 
received  and  sell  it  out,  whether  tract  of  bailment,  which  is  con- 
purchased  or  received  for  store,  verted  into  a  sale  whenever  the 
delivered  his  grain  to  the  elevator  bailee  disposed  of  the  grain.  Nel- 
without  any  agreement  that  it  son  v.  Brown,  44  Iowa,  455.  And 
should  be  held  and  stored,  the  in  the  following  cases  a  bailment: 
transaction  was  held  to  be  a  sale  Weil  v.  Krejnick,  63  Minn.  314; 
and  not  a  bailment.  Thompson  Miller  v.  State,  144  Ind.  401;  Irons 
V.  Jordon,  164  Ind.  551,  73  N.  E.  v.  Kentner,  51  Iowa,  88,  33  Am. 
1087.  If  at  option  of  warehouse-  119.  Where  the  deposit  is  at  the 
man  he  may  redeliver  the  grain  option  of  the  depositor.  James  v. 
or  pay  the  market  price — a  sale.  Plank,  48  Ohio  St.  255;  Lyon  v. 
Johnston  v.  Brown,  37  Iowa,  200;  Lennon,  106  Ind.  567. 
Odell  v.  Lyda,  46  Ohio  St.  244;  ^e  Ante,  §  23. 
In  Nelson  v.  Brown,  44  Iowa,  45B, 


136  ORDINARY  BAILMENTS.  [§    173. 

property  shall  be  kept  and  the  amount  to  be  charged,  and  often 
putting  upon  the  property  a  lien  for  the  payment  of  money. 
In  many  of  the  states  the  receipt  to  be  given  is  regulated  by 
statute,  and  often  the  statutes  require  certain  formalities;  the 
courts  have  often  been  called  upon  to  determine  what  shall  be 
deemed  a  proper  receipt. 

"A  warehouse  receipt  need  not  be  in  any  particular  form. 
An  instrument  intended  simply  as  a  memorandum  of  the  amount 
on  storage,  if  signed  by  the  warehouseman,  has  an  assignable 
quality,  and  an  indorsement  and  delivery  of  it  to  one  who  makes 
advances  upon  the  faith  of  it  renders  the  warehouseman  liable 
to  the  holder  of  it  for  the  goods  it  represents. ' '  "  And  in  Har- 
ris V.  Bradley,  the  court  held  that  an  instrument  executed  and 
signed  by  warehousemen,  in  the  following  words,  "Received  in 
store  for  account  of  B.  &  W.  3,000  sacks  of  com"  is  a  ware- 
house receipt,  having  an  assignable  or  negotiable  value.^^ 

It  has  been  held  by  some  of  the  courts  that  where  the  receipt 
was  given  by  one  who  is  not  a  warehouseman  it  will  not  be  held 
to  be  good  in  the  hands  of  an  assignee  as  against  the  creditors 
of  the  owner.  In  the  ease  of  Geilfuss  v.  Corrigan  et  aL/®  the 
supreme  court  of  Wisconsin  so  held.  In  that  case  storage  re- 
ceipts were  issued  by  a  debtor  to  its  creditors  on  a  quantity  of 
pig  iron  held  in  its  yards  for  the  purpose  of  allowing  its  creditor 
to  raise  money  upon  the  receipts  as  collateral.  The  iron  was 
not  placed  in  the  hands  of  a  regular  warehouseman  for  the 
reason  that  it  would  be,  as  the  evidence  shows,  less  expensive 
for  the  company,  debtor,  to  issue  the  receipts  itself.  The  receipts 
were  issued  and  assigned,  and  afterwards  the  property  was  levied 
upon  by  a  creditor.  The  court  held  that  the  transaction  could 
not  be  a  pledge  of  the  property  for  the  reason  that  it  was  not 
in  the  possession  of  the  pledgee ;  that  it  was  not  a  chattel  mort- 
gage for  the  reason  that  there  was  no  sale  with  a  defeasance 
clause.  The  court  say:  "Bona  fides  does  not  avail  the  pledgee 
in  the  absence  of  delivery  and  possession  either  actual  or  con- 
structive. There  was  confessedly  no  actual  delivery  here,  and 
the  only  thing  that  can  be  claimed  to  be  a  symbolical  or  con- 
structive delivery  is  the  indorsement  and  delivery  of  the  false 

17  Jones  on  Pledges,  sec.  298.  is  95  wis.  651,  70  N.  W.  306. 

18  Harris  v.  Bradley,  2  Dili.  (U. 

S.)   284. 


§    173.]  LOCATIO   CUSTODI^.  137 

receipts;  hence  the  question  becomes  whether  a  delivery  of  the 
receipts  under  the  circumstances  is  a  constructive  delivery  of  so 
much  iron.  Had  they  been  in  fact  warehouse  receipts,  the 
transfer  and  indorsement  thereof  by  way  of  pledge  would  have 
operated  as  a  sufficient  constructive  delivery  of  the  property 
both  by  the  common  law  and  by  the  statute. 

"Bills  of  lading  and  railroad  receipts  are  by  statute  placed 
upon  the  same  footing.  The  reasons  for  this  rule  are  very  ap- 
parent. In  such  cases  the  property  itself  is  in  the  hands  of  a 
third  person  or  corporation  instead  of  in  the  possession  of  the 
vendor  or  pledgor.  Consequently  it  does  not  furnish  any  false 
basis  of  credit,  nor  is  any  creditor  deceived,  because  it  is  well 
understood  that  goods  in  the  hands  of  warehousemen  or  carriers 
are  or  may  be  the  property  of  others,  and  by  the  long  usage  of 
trade  subject  to  just  this  mode  of  transfer.  No  such  consider- 
ations, however,  apply  in  the  case  of  goods  in  the  possession  of 
the  vendor  or  pledgor,  or  in  some  third  person  who  is  not  a  ware- 
houseman or  wharfinger,  and  we  know  of  no  rule  which  makes 
the  mere  delivery  of  a  receipt  a  constructive  delivery  of  the 
property  in  pledge  in  such  a  case." 

In  Shepardson  v.  Cary^'^  the  court  say:  ''To  uphold  the  re- 
ceipt as  a  proper  warehouse  document  transferring  the  title  to 
the  property,  and  operating  as  a  good  constructive  delivery  of 
it  to  the  vendee,  it  must  in  all  cases  distinctly  appear  that  it 
was  executed  by  a  warehouseman,  one  openly  engaged  in  that 
business  and  in  the  usual  course  of  trade."  If,  however,  it 
should  appear  that  the  goods  were  placed  in  the  possession  of  a 
third  person  as  custodian  by  the  bailor,  and  an  order  given  upon 
the  custodian  of  the  goods  directing  him  to  hold  the  property  for 
the  pledgee,  and  this  is  brought  home  to  the  knowledge  of  the 
custodian,  in  such  case  the  courts  have  held  that  it  would  be  a 
sufficient  delivery  and  change  of  possession  of  the  property, 
and  this  for  the  reason  that  the  property  is  placed  beyond  the 
control  of  the  pledgor  or  vendor. 

In  the  case  of  Sinsheimer  et  al.  v.  Whitely  ^^  the  court  held 
that  the  receipt  given  was  not  a  warehouse  receipt ;  ' '  that  where 

20  29    Wis.    34-42;    Whitaker    v.  Lowrie's  Executrix  v.  Salz,  75  Cal. 

Sumner,   20   Pick.   399;    Tuxwortli  349.     "A  receipt  by  A.  B.   &  Co., 

V.  Moore,  9  Pick.  347.  in  form:   'Received  on  storage  in 

21111    Cal.    378,   43    Pac.    1109;  my  canning  house,  from  E.  B.  M. 


138  ORDINARY  BAILMENTS.  [§   174.. 

produce  is  left  with  the  weigher,  who  stores  it  without  charge, 
a  receipt  given  by  the  weigher,  merely  reciting  that  the  prod- 
uce had  been  weighed,  and  stating  its  weight,  is  not  a  ware- 
house receipt,  the  transfer  of  which  as  security  constitutes  a  de- 
livery of  the  produce,  rendering  the  pledge  valid  as  against  at- 
taching creditors  of  the  pledgor. ' ' 

From  this  discussion  of  what  is  not  a  receipt  can  be  understood 
what  is  required  in  a  valid  receipt. 

§  174.  At  common  law  a  warehouse  receipt,  in  a  technical 
sense,  is  not  negotiable. — The  customs  of  trade  and  business 
dealings  have  established  for  the  warehouse  receipt,  when  prop- 
erly indorsed,  a  certain  kind  of  negotiability  which  by  the  courts 
has  been  termed  ''g-imsi-negotiability,"  a  negotiability  not 
known  to  the  law  merchant  or  of  equal  rank  with  negotiable  in- 
struments, but  rather  a  medium  of  securing  a  transfer  of  title 
to  the  property  or  pledging  it  as  security.  It  is  used  by  way 
of  security  for  borrowed  money ;  is  often  transferred  by  indorse- 
ment; is  apparently  sold  in  the  market  as  though  it  were  a  ne- 
gotiable instrument;  but  it  cannot  be  said  that  it  is,  in  a  tech- 
nical sense,  negotiable.  It  does  not  stand  for  the  amount  of 
money  that  it  represents  upon  its  face,  but  merely  stands  in 
place  of  the  property  it  represents,  and  the  delivery  of  it  has  the 


&  Co.,  seventeen  hundred  and  for  a  loan,  was  held  not  a  ware- 
twenty  cases  of  3x  tomatoes,  my  house  receipt  within  the  meaning 
own  packing.  Deliverable  to  order  of  the  New  York  statute  (Laws 
of  E.  B.  M.  &  Co.,  only  on  pro-  1858,  ch.  326),  providing  that  any 
duction  of  this  receipt  properly  person  to  whom  warehouse  re- 
indorsed,'  was  held  not  a  'ware-  ceipts  are  transferred  by  indorse- 
house  or  storage'  receipt,  within  ment  shall  be  deemed  the  owner 
Maryland  Acts  1876,  ch.  262,  pun-  so  far  as  to  give  validity  to  any 
ishing  the  unlawful  delivery  by  pledge,  lien  or  tranfer  by  such 
unauthorized  persons  of  goods  person.  Yenni  v.  McNamee,  45 
mentioned  in  such  receipts.  State  N.  Y.  614.  A  weighmaster's  ticket, 
V.  Bryant,  63  Md.  66.  A  receipt  with  the  word  'stored'  written  on 
for  a  quantity  of  petroleum,  given  its  face,  is  not  a  warehouseman's 
to  the  owner  by  the  superin-  receipt  entitling  the  holder  to  re- 
tendent  of  his  factory,  where  a  cover  thereon,  under  Iowa  Code, 
larger  quantity  was  stored,  no  oil  sec.  2171,  regardless  of  the  dis- 
being  set  apart  as  covered  by  the  posal  of  the  grain  covered  there- 
receipt,  which  was  subsequently  by.  Cathcart  v.  Snow,  64  Iowa, 
transferred  by  the  owner,  by  in-  584." 
dorsement,  as  collateral  security 


§  174.]  LOCATIO  eUSTODLE.  139 

same  effect  as  the  delivery  of  the  property  itself.  The  delivery 
of  the  receipt  does  not  transfer  the  contract  so  as  to  enable  the 
assignee  or  indorsee  to  maintain  an  action  upon  it  in  his  own 
name  without  the  aid  of  a  statute  governing  such  actions.  It 
cannot  be  said  that  there  is  any  privity  of  contract  between  a 
warehouseman  and  the  assignee  of  the  warehouse  receipt;  and 
so  it  follows  that  the  assignee  of  the  warehouse  receipt  occupies 
no  better  position  in  relation  to  the  warehouseman  than  did  the 
bailor  of  the  property,  for  it  has  been  frequently  held  that  the 
assignor  could  convey  no  greater  title  to  the  property  than  he 
himself  possessed.  It  is  therefore  not,  in  a  technical  sense,  like  a 
bill  of  exchange  or  a  negotiable  instrument,  but  it  is  more  in  the 
nature  of  an  assignment  of  the  rights  and  interests  of  the  bailor 
in  the  property  represented  by  the  warehouse  receipt. 

In  the  case  of  Burton  v.  Curyea,-'^  the  court,  among  other 
things,  charged  the  jury  as  follows:  "The  warehouse  receipts 
are  not  negotiable  in  a  legal  sense  so  as  to  enable  the  person  hold- 
ing them  to  transfer  a  greater  right  or  title  to  the  property  men- 
tioned in  them  than  he  himself  had.  Their  only  office  is  to  stand 
in  the  place  of  the  property  itself,  so  far  as  the  questions  in- 
volved in  this  case  are  concerned,  for  the  convenience  of  the 
parties  interested  in  the  property.  The  delivery  of  the  receipt 
has  the  same  effect  as  the  delivery  of  the  property;  no  greater 
and  no  less. ' ' 

It  is  urged  that  warehouse  receipts  should  be  treated  as  ne- 
gotiable paper,  and  that  this  is  required  by  the  exigencies  of 
commerce.  Referring  to  this  position,  and  the  reasons  urged  in 
its  support,  we  can  only  say,  if  it  be  desirable  that  these  in- 
struments should  be  placed  upon  this  footing,  it  belongs  to  the 
legislature  to  make  the  rule.  Such  is  certainly  not  now  the  law 
as  it  has  been  expounded  by  the  highest  authorities  both  of  Eng- 

22  40  111.  320 ;  Western  Union  R.  thority  to  issue  such  receipt.  Corn 

Co.  V.  Wagner,  65  111.  197.   A  hona  Ex.  Bank  v.  Am.  Dock  &  T.  Co., 

iide  holder  for  value  of  a  ware-  14  App.  Div.  453,  43  N.  Y.  Supp. 

house    receipt,    issued    to   himself  1028.      The   indorsement    and    de- 

by  the  president  for  cotton,  may  livery  of  a  warehouse  receipt  of 

recover   the   value   of   the   cotton  goods  stored  transfers  the  owner- 

from  the  warehouse  company,  al-  ship  of  the  property  only,  and  not 

though  no  cotton  was  in  fact  de-  the  contract  itself. 
posited,  if  the  president  had  au- 


140  ORDINARY  BAILMENTS.  [§    174. 

land  and  of  this  country.  It  is  true  that  it  is  one  of  the  ex- 
cellencies of  the  common  law  that  its  principles  can  be  adapted 
by  the  courts  to  new  emergencies  as  they  arise  in  the  rapid  de- 
velopment of  modern  society ;  but  this  flexibility  of  the  system  in 
judicial  hands  should  be  confined  to  the  new  application  of  set- 
tled principles,  or  of  principles  in  harmony  with  those  that  are 
settled,  and  should  not  be  extended  to  the  making  of  new  rules 
that  are  merely  in  violation  of  maxims  lying  at  the  foundation 
of  our  laws  and  as  old  as  the  law  itself. 

This  question  was  thoroughly  discussed  in  the  case  of  Second 
National  Bank  v.  WalhridgeP  That  case  was  a  peculiar  one. 
The  warehouseman,  on  the  application  of  the  owner,  by  a  mis- 
take issued  to  him  at  different  dates  two  warehouse  receipts  for 
the  same  property.  Afterward,  the  assignee  of  the  first  receipt 
recovered  the  property  in  replevin  from  the  plaintiff,  who  held 
the  second  receipt.  The  plaintiff  thereupon  instituted  a  suit  to 
recover  from  the  defendant,  the  warehouseman,  the  value  of  the 
property. 

The  supreme  court  held  that  the  assignee  of  the  receipt  occu- 
pied no  better  position  than  the  bailor  of  the  goods  would  have 
occupied  had  he  brought  the  action.  Counsel  for  the  plaintiff 
in  the  argument  urged  that  the  case  at  bar  was  identical  in  prin- 
ciple with  cases  where  a  teller  or  other  officer  of  a  bank  certi- 
fied checks  to  be  good,  and,  thus  certified,  the  checks  had  been 
transferred  to  third  parties,  when  in  truth  the  drawer  had  no 
funds  in  the  bank;  and  also  cited  cases  embracing  the  principle 
involved,  where  a  note  is  given  which  would  be  void  in  the  hands 
of  the  original  holder,  but  in  the  hands  of  a  'bona  fide  indorsee 
would  be  good ;  so  that  in  this  case  the  negotiability  of  the  ware- 
house receipt  was  squarely  before  the  court.  The  court  say:  "A 
warehouse  receipt  given  by  a  warehouseman  for  property  placed 
in  his  possession  for  storage  is  not,  in  a  technical  sense,  like  a 
bill  of  exchange,  a  negotiable  instrument;  but  it  merely  stands 
in  place  of  the  property  it  represents;  and  a  delivery  of  the  re- 
ceipt has  the  same  effect  in  transferring  the  title  to  the  property 
as  the  delivery  of  the  property."  And  further  added:  "Nor 
is  there  any  force  in  the  claim  made  in  the  argument,  that  the 
receipt  in  this  case  was  negotiable  because,  by  its  terms,  the  prop- 

23  19  Ohio  St.  419.  See  case  distinguished  in  Ensel  v.  Levy  &  Bro., 
46  Ohio  St.  255-263. 


§    174.]  LOCATIO   CUSTODI^.  141 

erty  was  declared  to  be  subject  to  the  order  of  the  bailor,  .  .  . 
and  such  was  the  fact  in  all  of  the  cases  above  cited. 

"This  case  is  clearly  distinguishable  from  the  cases  urged 
upon  our  attention,  where  negotiable  paper,  invalid  between  the 
original  parties,  has  been  enforced  in  favor  of  a  hona  fide  holder 
for  value;  also,  from  the  cases  where  the  representation  of  the 
defendant  has  been  made  directly  to  the  plaintiff,  with  the  view 
of  influencing  his  conduct. 

"In  the  former  class  of  cases,  the  negotiable  character  of  the 
paper  affords  the  holder  protection ;  in  the  latter  class,  when  the 
other  necessary  elements  are  found,  there  exists'  good  ground 
for  the  application  of  the  doctrine  of  estoppel." 

It  seems,  therefore,  that  the  law  places  warehouse  receipts, 
when  indorsed  or  transferred  as  security  for  money  loaned, 
upon  precisely  the  same  footing  as  loans  made  upon  pledge  and 
delivery  of  the  property  itself.  If  the  person  who  pledges  the 
property  is  the  owner,  then  the  security  is  good  to  the  extent 
of  the  value  of  the  property  in  custody  of  the  warehouseman 
and  shown  by  the  receipt;  but  if  he  is  not  the  owner,  if  he  is 
simply  a  bailee,  or  if  the  warehouse  receipt  had  been  issued  to 
him  by  mistake,  or  if  the  property  turns  out  to  be  a  different 
kind  of  property  than  that  represented  in  the  receipt,  and  it 
could  not  have  been  known  to  have  been  thus  different  by 
the  warehouseman  without  opening  up  the  packages  and  exam- 
ining each  package,  or  if  the  property  should  turn  out  to  be 
stolen  property,  or  if  the  bailor  of  the  property  should  not  be 
the  owner,  but  simply  a  bailee,  and  was  attempting  to  make  a 
fraudulent  use  of  the  property  intrusted  to  his  keeping,  in  such 
like  cases  it  seems  to  be  settled  that  a  person  purchasing  or  re- 
ceiving the  property  as  security  will  receive  no  better  title  than 
the  indorser  or  warehouseman's  bailor  had.  In  other  words,  the 
property  will  be  subordinated  to  the  title  of  the  true  owner ;  and 
in  the  language  of  the  court  in  Burton  v.  Ciiryea,-^  "these  are 
risks  which  men  engaged  in  business  mus1;  be  content  to  en- 
counter, and  against  which  the  law  can  afford  them  no  protec- 
tion. The  law  can  punish  roguery  but  it  cannot  secure  innocent 
persons  against  losses  from  its  multiform  devices." 

24  40  111.  320;  Jones  on  Pledges,  sec.  281;  Davis  v.  Bradley,  28  Vt.  118; 
Bryans  v.  Nix,  4  M.  &  W.  775;  Broadwell  v.  Howard,  77  111.  305. 


Marked 


142  ORDINARY  BAILMENTS.  [§    174. 

In  the  case  of  Dean  v.  Driggs,^^  a  warehouseman  issued  two  re- 
ceipts substantially  in  the  following  language : 

**M.  S.  Driggs  &  Company's  Warehouse. 
No.  1394.  "New  York,  March  28,  1885." 

Eeceived    from    Max    Von    Angern,    ex 
Grinaldo,  in  store  278-80  South  street,  to  be 
3  /\  -g  held  by  us  on  storage,  and  to  be  delivered  to 

v§  <:f  B  C^  ^  ^^^  order  on  return  of  this  receipt  and  pay- 
bx3  ^\^^  '2  ment  of  storage  and  charges,  fifteen  hundred 
[zj  ft  barrels  Portland  cement. 

1.500  Bbls.  "Storage  per  month  4. 

"Labor. 

"M.  S.  Driggs  &  Co." 

The  bailor  of  the  property,  having  obtained  the  receipts,  took 
them  to  the  plaintiffs  and  executed  a  note  for  $3,500,  and  in- 
dorsed the  warehouse  receipts,  and  authorized  the  plaintiffs  to 
deliver  the  note  and  the  guaranty  of  payment  indorsed  upon  it 
by  the  plaintiffs,  at  his  request,  together  with  the  warehouse  re- 
ceipts as  collateral  security,  to  a  certain  bank  in  New  York,  and 
to  receive  the  proceeds  of  the  discount  of  such  note.  The  plain- 
tiffs did  so,  and  delivered  the  money  to  the  bailor;  the  note  not 
being  paid  when  due,  the  plaintiffs  paid  it.  The  bailor  having 
absconded,  the  plaintiffs  went  to  the  warehouse  of  the  defendants, 
and  when  the  barrels  which  were  purported  to  be  filled  with 
Portland  cement  were  opened,  it  was  discovered  that  they  did 
not  contain  Portland  cement,  but  contained  a  practically  worth- 
less material  somewhat  resembling  clay  or  mortar. 

Upon  this  the  plaintiffs  commenced  a  suit  against  the  defend- 
ants, the  warehousemen,  claiming  that  they  were  liable  for  the 
cement  the  barrels  were  represented  to  contain ;  and  the  question 
then  arose  as  to  the  obligation  of  the  warehouseman  to  examine 
packages  that  are  left  with  him  for  safe  keeping.  The  court 
held  "that  the  language  of  the  receipt  was  merely  descriptive 
of  the  barrels  which  the  defendant  received,  that  it  would  not  be 
practicable  for  a  warehouseman  to  be  compelled  to  open  and 
examine  the  contents  of  every  package,  barrel  or  box  of  merchan- 
dise delivered  to  him  where  it  is  so  packed  as  to  cover  and  con- 

25 137  N.  Y.  274 


§    174.]  LOCATIO   CUSTODI^.  143 

ceal  the  real  nature  of  the  goods  delivered;"  and  adding,  "that 
in  some  instances,  if  such  were  the  law,  it  would  be  necessary  for 
the  warehouseman  to  have  expert  examiners  in  order  to  ascertain 
the  kind  of  goods  contained  in  such  packages ; ' '  the  court  using 
this  language :  "  It  is  known  and  understood  that  the  business  of 
a  warehouseman  is  not  that  of  an  inspector  of  property  delivered 
to  him,  nor  is  he  an  insurer  of  the  contents  of  packages.  It  is  no 
part  of  the  duty  of  the  defendant,  as  a  warehouseman,  to  have 
property  inspected  or  its  quality  warranted,  and  no  proceedings 
.are  supposed  to  take  place  to  enable  a  warehouseman  to  become 
acquainted  with  the  contents  of  packages,  for  the  very  reason 
that  in  his  business  it  is  unimportant  what  such  contents  are. 

"The  general  object  of  giving  a  description  of  the  property  in 
the  receipt  is  for  the  purpose  of  identification  only,  so  that  the 
identical  property  delivered  to  the  warehouseman  may  be  de- 
livered back  by  him  upon  the  return  of  the  warehouse  receipt, 
and  for  such  purpose  it  is  sufficient  to  describe  the  property  as  it 
by  its  external  appearance  seems  to  be.  Such  a  description  is 
not  calculated  to  mislead  any  one  in  regard  to  the  actual  contents 
of  the  package." 

The  rule  seems  to  be  that  a  hona  fide  holder  of  the  warehouse 
receipt  will  be  protected  to  this  extent,  as  to  all  representations 
of  fact  which  are  within  the  knowledge  of  the  warehouseman 
who  gives  the  receipt,  or  which  from  the  nature  of  the  goods,  or 
in  the  ordinary  course  of  business,  ought  to  have  been  within 
his  knowledge ;  but  further  than  this  the  law  has  not  gone.^* 

At  most,  therefore,  it  can  only  be  said  that  a  warehouse  re- 
ceipt is  g-was^'-negotiable ;  not  negotiable  paper  under  the  law 
merchant.  The  contract  is  open  to  equities;  the  assignee  stand- 
ing in  no  better  position  than  that  of  the  bailor  of  the  prop- 
erty.^'^  The  redelivery  of  the  property  stored  would  be  a  com- 
plete compliance  with  the  contract  expressed  in  the  receipt  of  the 
warehouseman,  except,  perhaps,  in  a  case  where,  because  of  the 
negligence  of  the  warehouseman,  a  receipt  for  valuable  property 
was   given,   where   inferior   and    worthless    commodities    were 


2«5  First  Nat.  Bank  of  Chicago  v.      Thompson  v.    Dominy,  14  M.  &  W. 
Dean,  137  N.  Y.  110.  403;    Blanchard  v.  Page,  8   Gray, 


27  Edwards  on  Bailments,  287 
Willard  v.  Bridge,  4  Barb.  361 
Suydam    v.    Smith,    7    Hill,    182 


281;    Bank  of  Rochester  v.   Colt, 
15  Barb.  506. 


144 


ORDINARY  BAILMENTS. 


[§  174. 


actually  received  and  stored,  and  the  receipt  had  for  value  been 
received  by  assignment  or  indorsement  by  a  hona  fide  holder; 
and  this  not  because  the  receipt  is  negotiable  in  the  sense  of 
commercial  paper,  but  because  of  the  negligence  of  the  warehouse- 
man in  holding  out  to  the  bona  fide  holder  that  the  valuable 
goods  are  in  store,  and  for  this  reason  he  is  estopped  from  deny- 
ing the  receipt  given. 

The  delivery  of  the  goods  to  be  stored  and  the  giving  of  the 
receipt  therefor,  reciting  that  they  are  to  be  redelivered  upon 
presenting  the  receipt  properly  indorsed,  or  upon  the  order  of 
the  owner  or  bailor,  creates  a  bailment.  The  very  essence  of  the 
contract  is  that  the  same  property  shall  be  returned;  so  any 
contract  which  does  not  provide  for  a  return  of  the  same  prop- 
erty would  not  be  a  bailment  contract,  but  one  of  sale  or  ex- 
changed^ The  transfer  of  the  receipt  does  not  create  any  new 
rights,  and  has  no  other  operation  or  effect  than  as  a  symbolical 
delivery  of  the  property.^® 


28  Norton  v.  Woodruff,  2  N.  Y. 
153. 

29  Hale  and  others  v.  Milwaukee 
Dock  Company,  29  Wis.  482,  was  a 
case  where  the  owner  pretended 
to  deliver  for  storage  barrels  of 
mess  pork,  and  obtained  a  receipt 
from  the  warehouse  company  for 
barrels  of  mess  pork,  when  in 
reality  the  barrels  contained  only 
salt.  The  receipt  in  due  course  of 
business  gave  to  the  plaintiff  a 
security  for  a  loan.  The  defend- 
ant refused  to  deliver  barrels  of 
mess  pork  and  an  action  was 
brought.  The  court  says:  "The 
receipt  of  a  warehouseman  or 
wharfinger,  and  the  receipt  or  bill 
of  lading  of  a  common  carrier,  are 
contracts  of  precisely  the  same 
general  nature  and  effect,  and 
should  obviously  be  governed  by 
the  same  rules  and  principles,  as 
to  the  application  of  the  doctrine 
of  estoppel  or  negotiability,  which, 
with  respect  to  such  contracts, 
means  one  and  the  same  thing. 
They  are  or  may  be  said  to  be  ne- 


gotiable or  conclusive  in  the  hands 
of  a  bona  fide  assignee  or  holder 
for  value,  so  far  as  the  party  ex- 
ecuting them,  warehouseman  or 
carrier,  has  made,  or  is  bound  by, 
the  representations  contained  in 
them.  They  are  negotiable  or 
conclusive  and  valid  in  the  hands 
of  such  a  holder,  because  the 
signer,  or  party  by  whom  they 
are  executed,  is  estopped,  or  not 
permitted  to  deny  the  existence 
of  the  facts  represented  in  or  by 
them,  and  which  are  presumed  to 
have  been  within  his  knowledge 
at  the  time  of  their  execution. 
Negotiability,  or  gwast-negotiabil- 
ity  as  it  has  sometimes  been  more 
properly  called,  and  estoppel, 
when  spoken  of  with  respect  to 
such  instruments,  mean,  there- 
fore, one  and  the  same  thing.  In 
Rowley  v.  Bigelow,  12  Pick.  307, 
314,  and  Stanton  v.  Eager,  16  id. 
467,  474,  carriers'  receipts  or  bills 
of  lading  are  spoken  of  as  quasi- 
negotiable,  which  is  the  more  ac- 
curate form  of  expression.    A  bill 


§  175.] 


LOCATIO   CUSTODLE. 


145 


§  175.  Negotiability  of    receipt    provided    by    statute. — In 

most  of  the  states  the  receipt,  so  far  as  possible,  is  made  nego- 
tiable by  statute;  these  statutes  providing  that  the  receipt  may 
be  transferred  by  indorsement  and  delivery,  and  that  the  indorse- 
ment may  be  either  in  blank  or  to  the  order  of  another,  and 
shall  be  deemed  a  warranty  that  the  indorser  has  good  title  and 
lawful  authority  to  sell  the  property  named  in  such  receipt,  and 
generally  providing  that  the  transferee  of  the  property,  by  ne- 
gotiating the  receipt,  shall  be  subject  to  the  lien  of  the  ware- 
houseman for  charges  and  advances. 

These  statutes,  as  a  general  rule,  have  provisions  with  refer- 
ence to  the  issuing  of  receipts  by  the  warehouseman  as  security 
for  money  loaned,  and  usually  provide  that  the  warehouseman 
shall  not  issue  receipts  or  vouchers  for  personal  property  to  any 
person  or  corporation  as  security  for  money  loaned  or  for  other 
indebtedness,  unless  such  property  so  receipted  for  shall  be  at 
the  time  of  issuing  such  receipt  or  voucher  in  the  custody  of  the 
warehouseman  without  incumbrance,  and  actually  in  store  and 
under  his  control  at  the  time.  The  negotiability  of  the  receipt, 
the  manner  of  issuing  it,  and  the  rights  and  privileges  of  the 


of  lading  or  carrier's  receipt  for 
goods  to  be  transported,  and  the 
receipt  of  a  warehouseman  or 
wharfinger  for  goods  in  store  or 
to  be  forwarded,  are  both  con- 
tracts of  bailment.  Both  the  car- 
rier and  the  warehouseman  are 
bailees  for  hire,  the  former  agree- 
ing to  carry  and  deliver  the  iden- 
tical goods  or  property  received 
at  the  place  designated  or  agreed 
upon,  and  the  latter  to  forward  or 
redeliver  or  return  the  very  same 
goods  or  property  on  presenta- 
tion of  the  receipt,  unless  there 
be  some  express  agreement,  or 
known  usage,  or  custom  of  trade 
or  business,  showing  that  the  par- 
ties otherwise  intended.  It  is  of 
the  very  essence  of  both  agree- 
ments that  the  very  same  prop- 
erty received  shall  be  carried,  de- 
livered or  returned  to  the  party 
who  may  be  entitled  thereto,  in 
10 


discharge  of  the  obligation  of  the 
bailees.  The  delivery  or  return 
of  the  same  property,  and  of  no 
other,  will  discharge  such  obliga- 
tion or  duty  and  satisfy  the  terms 
of  the  contract.  Even  in  case  of 
fraud,  or  wilful  untruth,  or  mis- 
representation on  the  part  of  the 
bailee,  or,  in  a  case  like  the  pres- 
ent, where  he  is  himself  deceived 
or  misled,  without  fault  on  his 
part,  by  the  fraudulent  conceal- 
ment or  devices  of  the  bailor,  no 
other  or  corresponding  property  or 
goods  can  be  tendered  in  perform- 
ance of  the  contract.  In  the  for- 
mer case,  the  bailee  (and  in  the 
latter  also,  if  liable)  must  respond 
in  damages  for  the  value  of  the 
property  represented  by  the  re- 
ceipt, unless  the  party  entitled  to 
the  same  elects  to  receive  other 
property  instead." 


146 


ORDINARY  BAILMENTS. 


[§  175. 


warehouseman  and  the  holder  of  the  receipt,  depend  very  largely 
upon  the  statutes  of  the  several  states.  It  will  be  therefore  be 
necessary,  in  order  to  determine  fully  the  rights,  privileges  and 
liabilities  of  the  warehouseman  in  the  different  states  in  this 
regard,  to  consult  the  several  statutes.^" 

It  may  be  said,  however,  that  even  under  the  several  statutes, 
negotiability  of  the  receipt  cannot  be  exetended  beyond  the  ex- 
press term  or  provision  of  the  statutes ;  that  is  to  say,  these  stat- 
utes making  warehouse  receipts  negotiable  are  such  an  innovation 


30  Michigan  Com.  Laws,  78,  sec. 
5037-39,  provide  that  "warehouse 
receipts  shall  be  negotiable  and 
may  be  transferred  by  indorse- 
ment and  delivery  either  in  blank 
or  to  the  order  of  another,  except 
where  the  words  'non-negotiable' 
are  plainly  written,  printed  or 
stamped  on  the  face  thereof." 

Massachusetts  Public  Statutes, 
419,  provide  "that  the  warehouse- 
man shall  give  receipt  for  the 
property  negotiable  in  form,  and 
that  the  title  to  the  property 
stored  shall  pass  to  the  purchaser 
or  pledgee  by  the  indorsement 
and  delivery  to  him  of  the  ware- 
house receipt  therefor,  signed  by 
the  person  to  whom  such  receipt 
was  originally  given,  or  by  the  in- 
dorsee of  the  receipt;  provided 
that  every  such  warehouseman 
shall,  upon  request  of  any  person 
depositing  property,  give  to  such 
person  his  warehouseman's  non- 
negotiable  receipt;  such  receipt 
to  have  plainly  printed,  written 
or  stamped  upon  it  'non-negotia- 
ble,' and  that  the  assignment  of 
such  non-negotiable  receipt,  to  be 
effectual,  must  be  recorded  on  the 
books  of  the  warehouseman  who 
issues  it."  See  Amendment,  Sup- 
plement 1882-88,  423. 

Illinois     Revised     Statutes,     98, 
1270,  sec.  156,   provide   "that  the 


receipt  shall  be  transferable  by 
indorsement,  and  that  such  in- 
dorsement shall  be  deemed  a  valid 
transfer  of  the  property." 

Indiana  Ann.  Stats.  1854,  sec. 
8722,  provide  "that  all  receipts  is- 
sued by  any  warehouseman,  as 
provided  in  this  act,  shall  be  ne- 
gotiable and  transferable  by  in- 
dorsement in  blank,  or  by  special 
indorsement  and  with  like  liabil- 
ity as  bills  of  exchange  now  are 
and  with  like  remedy  thereon." 
There  are  other  provisions  requir- 
ing that  receipts  shall  only  be 
given  for  property  stored,  and  for- 
bidding fraudulent  receipts;  also 
providing  that  the  warehouseman 
shall  not  sell,  incumber,  ship, 
transfer  or  move  beyond  his  im- 
mediate control  any  property  for 
which  a  receipt  shall  be  given 
without  the  consent  of  the  holder 
of  the  receipt. 

Tennessee  Code,  1896,  sec.  3605, 
enacts  that  warehouse  receipts 
shall  be  negotiable,  except  in 
cases  where  the  words  "non-ne- 
gotiable" are  written,  printed  or 
stamped  upon  the  receipt. 

California,  Connecticut,  Iowa, 
Kansas,  Kentucky,  Maine,  Mary- 
land, New  York,  Wisconsin  and 
other  states  have  enactments  upou 
this  subject 


§  177. 


LOCATIO  CUSTODI^. 


147 


upon  the  law  governing  the  negotiability  of  conunerical  paper, 
that  the  courts  would  give  to  the  statutes  a  strict  construction, 
and  their  negotiability  would  be  confined  to  the  strict  provisions 
of  the  statute. ^^ 

§  176.  Warehouseman  not  permitted  to  impeach  his  reciept. 
While,  as  we  have  seen,  the  warehouseman  will  be  permitted  to 
show  in  certain  cases  that  the  property  received  was  not  of  the 
kind  represented  and  receipted  for,  in  eases  where  it  can  be  said 
that  the  custodian,  the  warehouseman,  knew  or  ought  to  have 
known  what  kind  of  property  he  did  receive  for  storage,  he  will 
not  be  heard  to  impeach  his  receipt.  And  so  it  has  been  held 
that  "a  warehousem^an  who  receives  wheat  for  storage,  giving 
receipts  therefor,  designating  and  guaranteeing  the  grade  and 
quantity  of  the  wheat,  becomes  liable  for  damages  to  a  trans- 
feree of  such  receipt  by  refusing  to  deliver  the  wheat  called  for, 
and  delivering  wheat  of  an  inferior  quality.^- 

§  177.  Warehousemen  may  insure  the  property. — There 
seems  to  be  no  question  but  that  the  warehouseman  or  whar- 
finger may  insure  the  property  in  his  possession  in  his  own  name, 


31  Warehouse  receipts  quasi-ne- 
gotiable,  transfer  of  it  equivalent 
to  constructive  delivery  and  pass- 
ing title  of  property  stored.  Farm- 
ers', etc.  Bank  v.  Bennett,  120  Ga. 
1012,  48  S.  E.  398;  Lewis  v.  First 
Nat.  Bank,  46  Or.  182,  78  Pa.  690; 
Millhiser,  etc.  Co.  v.  Gallego,  etc. 
Co.,  101  Va.  579,  44  S.  B.  760. 
Where  goods  bulky,  a  delivery  of 
receipt  a  constructive  delivery  of 
the  property,  good  against  all  the 
w^orld.  Bush  v.  Export  Storage 
Co.,  136  Fed.  918.  To  constitute 
a  pledge  of  property  by  transfer- 
ing  receipt,  the  receipt  must  have 
been  issued  by  one  having  posses- 
sion of  the  property.  In  re  Rog- 
ers, 125  Fed.  169,  60  C.  C.  A.  567; 
Milliorn  v.  Clow,  42  Or.  169,  70 
Pac.  398. 

32  Lawson  v.  Genesee  Farmer, 
etc.  Co.,  43  Pac.  191;  Griswold  v. 
Haven,  25  N.  Y.  595,  82  Am.  Dec. 


380;  Babcock  v.  People's  Savings 
Bank,  118  Ind.  212.  While  the 
warehouseman's  receipt  is  an  ac- 
knowledgment that  he  received 
the  goods  and  estops  him  from  de- 
nying that  fact,  it  has  reference 
only  to  goods  that  are  visible  and 
open  to  inspection,  and  the  ware- 
houseman is  not  precluded  from 
showing  that  the  loss  proceeds 
from  some  cause  which  existed 
but  was  not  apparent  when  he  re- 
ceived the  goods.  Robson  v. 
Swart,  14  Minn.  371,  100  Am. 
Dec.  238.  A  warehouseman  is  not 
estopped  from  disputing  a  receipt 
issued  by  mistake  and  not  inten- 
tionally, even  where  it  has  been 
taken  as  security  for  a  loan. 
Second  Nat.  Bank  v.  Walbridge, 
19  Ohio  St.  419,  2  Am.  Dec.  408; 
St.  Louis,  etc.  R.  Co.  v.  Knight, 
122  U.  S.  79,  30  L.  Ed.  1077; 
Warehouseman  not  bound  to  open 


148 


ORDINARY  BAILMENTS. 


[§  177. 


and  in  case  of  loss  collect  the  whole  amount  of  insurance  for  the 
satisfaction  of  his  claims  against  the  goods  or  property,  holding 
the  residue  for  the  owner,  and  no  permission  from  or  notice  to 
the  owner  is  necessary  to  effect  such  insurance.^^ 

It  may  be  said  to  be  a  general  rule  that  the  warehouseman  is 
not  bound  to  insure  the  property  left  in  his  custody  unless  there 
is  some  special  undertaking  so  to  do,  in  which  case  he  would  be 
bound  to  do  so ;  but  circumstances  might  be  such  that  the  courts 
would  hold  that  ordinary  diligence  would  require  the  custodian 
to  insure  the  property.  As,  for  example,  where  the  property 
belongs  to  the  estate  of  an  infant  who  has  little  or  no  knowledge 
or  experience  in  matters  of  business,  and  ordinary  business  care 
and  prudence  would  demand  that  the  property  be  insured,  where 
by  the  terms  of  the  contract  of  storage,  or  by  agreement,  the 
warehouseman  agrees  to  insure  the  property  and  fails  to  do  so, 
he  is  liable  in  case  of  loss  to  the  owner  because  of  his  neglect. 
If,  however,  the  owner  did  not  rely  upon  the  warehouseman,  and 
effected  the  insurance  himself,  he  could  not  sustain  an  action 
against  him  for  the  neglect.^* 


and  inspect  barrels.  Hale  v.  Mil- 
waukee, etc.  Co.,  29  Wis.  488,  9 
Am.  Rep.  603;  Dean  v.  Briggs,  137 
N.  Y.  274,  33  Am.  St.  Rep.  721,  19 
L.  R.  A.  302,  and  notes. 

33  Home  Ins.  Co.  v.  Baltimore 
Warehouse  Co.,  93  U.  S.  527;  Bax- 
ter V.  Hartford  Ins.  Co.,  11  Biss. 
(U.  S.)  306;  Lancaster  Mills  v. 
Merchants'  Cotton  Press  Co.,  89 
Tenn.  1.  "The  law  seems  to  be 
well  settled  that  a  person  having 
goods  in  his  possession  as  con- 
signee or  on  commission  may  in- 
sure them  in  his  own  name,  and 
in  the  event  of  loss  recover  the 
full  amount  of  the  insurance,  and, 
after  satisfying  his  own  claim, 
hold  the  balance  as  trustee  for  the 
owner  "  Hough  v.  People's  F.  Ins. 
Co.,  36  Md.  398;  ^tna  Ins.  Co.  v. 
Jackson,  16  B.  Mon.  (Ky.)  242; 
Siter  v.  Moritz,  13  Pa.  St.  218. 

34  Lancaster  Mills  v.  Merchants 


Cotton  Press  Co.,  89  Tenn.  1.  The 
supreme  court  of  Georgia,  in  Zone 
v.  Hannah,  106  Ga.  61,  held  that 
"a  statement  in  a  warehouse  re- 
ceipt, 'all  cotton  stored  with  us 
fully  insured,'  does  not  constitute 
a  contract  between  the  parties,  re- 
quiring the  warehouseman  to  in- 
sure the  cotton  of  his  customers, 
and  rendering  him  liable  for  the 
value  of  the  same  when  destroyed 
by  fire."  But  in  Thompson  v. 
Thompson,  73  Minn.  379,  81  N.  W. 
204,  it  was  held  that  the  storage 
receipt  created  an  obligation  by 
implication  to  insure  the  property. 
In  that  case  the  blank  storage  re- 
ceipts used  were  in  the  following 
language: 
"La  Grange  Elevator  of  Appleton, 

Minn. 
"Smith  &  Thompson,  Proprietors. 

" bush.  No. wheat 

price    cents.       Received    in 


§   177.]  LOCATIO   CUSTODI^,  149 

Mr.  Justice  Gray,  in  Eastern  R.  Co.  v.  Belief  Fire  Ins.  Co.,^^ 
says :  ' '  By  the  law  of  insurance  any  person  has  an  insurable  in- 
terest in  property  by  the  existence  of  which  he  receives  a  benefit, 
or  by  the  destruction  of  which  he  will  suffer  a  loss,  whether  he 
has  or  has  not  any  title  in  or  lien  upon  or  possession  of  the 
property  itself.  Thus,  a  common  carrier  has  an  insurable  in- 
terest in  the  goods  carried  by  him,  which  he  may  insure  to  their 
full  value  without  regard  to  his  liability  to  the  owner  of  the 
goods.  So  has  a  warehouseman,  although  he  is  liable  only  for 
his  own  negligence  to  the  owner.  And  the  charterer  of  a  vessel 
has  covenanted  to  pay  its  value  in  case  of  loss,  or  to  obtain  in- 
surance upon  it  against  the  usual  risk,  has  an  insurable  interest 
in  the  vessel." 

In  White  v.  Madison  ^®  the  court  of  appeals  of  New  York  held 
that  a  sheriff  who  had  seized  goods  upon  an  attachment  had  such 
an  interest  in  the  goods  as  would  warrant  him  in  effecting  in- 
surance of  the  property,  and  that  a  policy  taken  by  him  through 
his  deputy  would  be  valid.  The  court  say :  "I  think  the  sheriff 
had  an  insurable  interest  in  the  goods,  and  that  the  policy  was 
valid.  The  sheriff,  by  the  seizure  on  the  attachment,  acquired  a 
special  property  in  the  goods,  which  would  have  enabled  him  to 


store ,  189 — ,  account  of  ceipting   for    a   large    amount    of 

,  or  order,  bushels  No.  wheat  received.    The  elevator  and 

wheat.     Which  amount,  kind  contents   were  destroyed  by  fire. 

and  grade  will  be  delivered  to  the  The  action  was  brought  to  recover 
holder  of  this  receipt  upon  sur-  the  value  of  the  wheat.  Held,  that 
render  thereof,  subject  to  the  fol-  this  storage  receipt  by  implica- 
lowing  conditions  as  to  storage,  tion  constituted  a  contract  of  in- 
etc:  The  first  fifteen  days  from  surance  by  the  warehouseman 
date  thereof,  or  fractional  part  against  loss  by  fire, 
thereof,  one-half  cent  per  bushel,  3598  Mass.  420-423;  3  Kent's 
but  shall  not  exceed  four  cents  Com.  276;  Insurance  Co.  v.  Chase, 
for  six  months.  This  charge  for  5  Wall.  513;  Wilson  v.  Jones,  L.  R. 
storage  shall  cover  loss  by  fire  3  Exch.  150, 151;  Carnley  v.  Cohen, 
only.  All  other  damages  by  the  3  B.  &  Ad.  478;  Waters  v.  Monarch 
elements,  or  by  heating,  or  not,  or  Assurance  Co.,  5  El.  &  Bl.  870; 
by  the  act  of  God,  or  which  in  any  Oliver  v.  Green,  3  Mass.  133;  Bart- 
way  have  been  caused  by  the  lett  v.  Walter,  13  Mass.  2G7.  See 
holder  of  this  receipt,  shall  be  ex-  note  52  L.  R.  A.  341,  title  "Held 
cepted.  by  bailee  or  warehouseman." 
"Smith  &  Thompson,  Proprietors."  se  26  N.  Y.  117-126. 
These   forms   were  used  in  re- 


150  ORDINARY  BAILMENTS.  [§    178. 

maintain  an  action  and  to  recover  their  full  value  against  any 
one  who  should  take  them  out  of  his  custody.  Such  special  prop- 
erty gave  him  an  insurable  interest.  It  was  his  duty  to  keep  the 
property  safely  until  sold  or  released,  and  he  was  chargeable  for 
its  destruction  by  any  cause  against  which  he  could  protect  it 
by  ordinary  care,  if  he  was  not  subject  to  a  more  stringent  rule 
of  responsibility.  Although  he  was  under  no  obligations  to  in- 
sure, he  could,  if  he  chose,  protect  himself  against  this  risk  by 
insurance." 

§  178.  Usage  and  general  course  of  business  to  a  certain 
extent  defines  the  duty  of  warehouseman  as  bailee. — As  we 
have  seen,  in  certain  cases  the  bailee  or  warehouseman  may  dis- 
charge his  full  duty  by  delivering  to  the  owner,  or  bailor,  or  to 
his  assignee  of  the  property,  other  property  than  the  identical 
property  for  which  the  receipt  was  given,  if  the  property  de- 
livered be  of  the  same  kind,  grade  and  quality  as  the  subject  of 
the  bailment.  Such  a  delivery,  however,  does  not  in  all  cases  dis- 
charge the  warehouseman  of  his  duty  in  the  premises.  It  is 
readily  understood  from  the  very  nature  of  the  property  and  the 
usual  course  of  dealing  that  a  storage-keeper  could  not  discharge 
his  liability  as  keeper  of  chattels,  such  as  furniture  and  manu- 
factured articles  placed  in  his  custody  for  safe  storage,  by  de- 
livering to  the  bailor,  or  his  assignee,  property  other  than  that 
which  was  the  subject  of  the  bailment,  and  claimed  to  be  of  the 
same  kind,  quality,  quantity  and  value,  but  that  he  would  be 
required  in  such  ease  to  deliver  the  identical  property  which 
was  placed  in  his  custody  by  the  bailor.  On  the  other  hand, 
where  grain,  as,  for  example,  wheat,  is  placed  in  the  warehouse, 
unless  there  is  some  special  contract  to  the  contrary,  usage  and 
the  general  course  of  business,  which  is  well  known  to  the  com- 
merical  world  and  among  dealers,  would  permit  that  the  ware- 
houseman might  deliver  to  the  bailor,  or  to  his  assignee,  to  sat- 
isfy the  receipt  which  was  given,  grain  of  the  same  grade,  qual- 
ity and  value. 

Now,  the  question  arises,  under  what  circumstances  and  to 
what  extent  is  the  one  rule  or  the  other  to  be  followed  in  dis- 
charging the  duty  incumbent  upon  the  warehouseman.  The 
circuit  court  of  the  state  of  Rhode  Island,  in  the  case  of  Fifth 
National  Bank  v.  Providence   Warehouse   Co.,^"^   discussed  this 

3T  17  R.  I.  112,  9  L.  R.  A.  260. 


S   178.]  LOCATIO   CUSTODI^.  151 

question  to  some  extent.  In  that  case  a  quantity  of  eggs  was  re- 
ceived for  storage  by  the  defendant,  and  the  following  receipt 
was  given  for  them : 

[  "Providence,  September  28,  1888. 

"Providence  Warehouse  Company: 
No.  5175.  I  ' '  Received  on  storage  of  A.  F.  Alver- 

son    Company,    subject  to    the    order  of 
the  Fifth  National  Bank,  390  eases  eggs, 
to  be  delivered  according  to  the  indorse- 
I  ment  hereon  but  only  on  the  surrender 
Stored  in  Section  B.     and  cancellation  of  this  receipt,  and  on 
payment  of  the  charge  payable  thereon. 
"S.J.  Foster,  Mgr." 


Marks. 


] 


There  were  no  distinguishing  marks  on  the  cases  of  eggs,  and 
none  noted  in  the  margin  of  the  receipt ;  the  eggs  were  received 
and  stored  by  the  defendant.  Upon  this  property  the  owner,  a 
produce  dealer,  borrowed  of  the  plaintiff  the  sum  of  $1,950  upon 
the  warehouse  receipt;  the  owner  had  other  eggs  in  the  ware- 
house, some  of  which  may  have  been  stored  with  these,  but 
this  particular  lot  was  specially  known  to  the  manager  and  serv- 
ants of  the  warehouse  from  the  fact  that  a  portion  of  the  prop- 
erty became  wet  when  the  defendant  was  putting  it  into  the 
warehouse.  The  plaintiff,  who  had  loaned  the  money,  brought 
this  action  to  recover  the  value  of  the  eggs.  The  contention  of 
the  defendant  in  this  case  was,  that  having  kept  other  cases  of 
eggs  belonging  to  the  owner  subject  to  the  bailee's  order,  the 
bank,  it  had  the  right,  in  the  absence  of  distinguishing  marks, 
to  deliver  the  eggs  stored  under  this  receipt,  and  that  therefore 
it  was  not  liable  for  such  delivery  without  the  plaintiff's  order, 
and  to  support  this  contention  the  defendant  cited  several  cases. 
The  court  in  its  opinion  said :  ' '  These  are  cases  where  grain  was 
deposited  according  to  usage  in  common  bulk,  being  necessarily 
indistinguishable,  and  the  several  depositors  were  held  to  be 
tenants  in  common  of  the  common  stock.^* 

"Consequently,  in  the  first  case  (cited  by  defendant)  loss  by 
diminution  or  decay  was  to  be  borne  pro  rata;  in  the  second, 

38  Dole  V.  Olmstead,  36  111.  150,      97  Ind.  99;   National  Exch.  Bank 
41    111.    344;     Preston    v.    Wither-      v.  Wilder,  34  Minn.  149. 
spoon,  109  Ind.  457;  Rice  v.  Nixon, 


152  ORDINARY  BAILMENTS.  [§   178. 

where  there  was  a  commingling  of  grain  of  the  warehouseman, 
who  was  publicly  selling  and  shipping  from  the  common  mass, 
and  apparent  ownership  and  authority  to  sell  was  conferred 
upon  him,  so  that  the  depositor  was  estopped  to  assert  title 
against  an  innocent  purchaser  in  the  usual  course  of  business; 
in  the  third  case,  where  the  warehouseman  sold  in  the  same  man- 
ner, leaving  enough  to  supply  the  depositor,  the  bailment  con- 
tinued, and  the  warehouseman  was  not  liable  for  loss  from  an 
accidental  fire  without  negligence.  These  cases  are,  therefore, 
quite  different  from  the  case  at  bar,  and  depend  upon  very  dif- 
ferent considerations,  aside  from  the  different  point  involved. 
It  is  obvious  that  grain  in  an  elvator  is  practically  incapable  of 
distinction  and  can  hardly  be  stored  without  commingling;  but 
it  is  not  so  with  merchandise  packed  in  cases.^^  The  warehouse- 
man can  place  them  in  separate  lots  or  he  can  mark  them  with 
the  number  of  the  receipt."  The  court  further  say:  "In  the 
case  before  us  the  eggs  were  delivered  without  an  order  from 
the  plaintiffs  with  full  knowledge  that  they  were  covered  by 
the  receipt  which  stipulated  that  they  were  subject  to  the  bailee's 
order. 

"It  is  urged  in  justification  that  these  eggs  were  out  of  cold 
storage,  and  other  eggs  were  kept  in  cold  storage  to  answer  the 
receipt.  To  this  the  plaintiff  replies  that  the  eggs  covered  by  this 
receipt  were  fall  eggs,  fresher  than  the  others  and  of  greater 
value.  However  this  may  have  been,  we  think  that  it  is  clear 
that  the  plaintiff,  under  this  receipt,  has  the  right  of  a  bailor, 
and  is  not  bound  to  receive  other  property  of  this  description  in 
place  of  its  own  when  the  bailee  has  intentionally  delivered  it 
to  another.  The  transferee  has  the  right  to  suppose  that  the  des- 
cribed property  is  held  subject  to  his  order.  How  is  he  to  know 
that  the  warehouseman  has  mingled  it  with  other  like  prop- 
erty so  as  to  be  indistinguishable  from  it,  if  such  were  the 
case?  Surely,  the  warehouseman  is  bound  to  some  degree  of 
care  and  responsibility  to  enable  him  to  deliver  what  he  re- 
ceives. If  it  is  enough  that  he  deliver  anything  answering  the 
same  general  description,  a  warehouse  receipt  is  indeed  a  pre- 
carious security.  The  delivery  to  Alverson  who  deposited  the 
eggs  is  no  defense,  since  by  its  contract  the  defendant  assumed 

39  Jones,   Pledges,   308. 


§  178.]  LOCATio  custodi;e.  153 

the  obligation  to  deliver  only  upon  the  order  of  the  plaintiff, 
knowing  from  the  course  of  business  that  the  plaintiff  had  ad- 
vanced money  upon  the  receipt, ' ' 

In  the  case  of  Stewart  v.  Phoenix  Ins.  Co.*^  receipts  were  given 
for  forty  bales  of  cotton  variously  marked,  deliverable  only  upon 
the  indorsement  of  the  secretary  of  the  bailee.  The  depositor 
failing  in  business,  the  warehouseman  notified  the  seceretary  of 
the  company  that  the  creditors  of  the  bailor  were  replevying 
cotton  which  he  had  in  store,  and  requested  the  secretary  to  take 
forty  bales  to  secure  the  company  or  to  defend  the  replevying 
suit.  Upon  this  the  secretary  of  the  company  inquired  of  the 
warehouseman  if  the  same  identical  bales  that  were  deposited 
with  him  were  in  his  possession.  To  said  inquiry  the  bailee  an- 
swered that  they  were  not.  Thereupon  the  secretary  of  the  com- 
pany declined  to  accept  the  forty  bales  of  cotton  offered,  and 
afterwards  brought  suit  to  recover  the  value  of  the  cotton  that 
was  deposited.  Oral  testimony  was  sought  to  be  given  upon  the 
part  of  the  warehouseman  to  prove  that  there  was  an  under- 
standing that  the  receipt  could  be  satisfied  by  the  delivery  of 
other  cotton.  The  court,  however,  excluded  this  testimony  upon 
the  ground  that  it  would  tend  to  vary  and  alter  a  written  con- 
tract, and  the  plaintiff  had  judgment. 

The  Wisconsin  court,  in  Hale  v.  Milwaukee  Dock  Co.,^^  held 
"that  a  warehouse  receipt  was  a  contract  binding  the  receiptor 
to  safely  store  and  deliver  the  same  goods  to  the  holder  of  the 
receipt,  except  in  those  cases  where  there  is  some  expressed 
agreement  or  known  usage  of  trade  which  shows  that  the  parties 
otherwise  intended." 

In  Goodwin  v.  Scanlon  ^^  the  court  held  '  *  that  the  defendants 
being  warehousemen,  and  having  given  their  storage  receipt  for 
a  specific  number  of  barrels  of  pork,  could  not  set  up  the  want 
of  segregation  to  avert  their  liability ;  that  by  their  receipt  they 
have  charged  themselves  and  are  estopped;  that  if  a  warehouse- 

40  9  Lea,  104.  ceipt  on  return  of  the  same  and 
4129  Wis.  482.  "The  meaning  payment  of  storage;  and  the  ware- 
of  this  (receipt)  clearly  shows  houseman,  not  less  than  the  ship- 
that  the  same  fifty-four  barrels  owner  or  carrier,  is  bound  to  de- 
received  in  store  and  described  as  liver  the  identical  goods  received 
mess-pork  are  deliverable  or  to  be  in  fulfillment  of  his  contract." 
delivered  to  the  bearer  of  the  re-  ^-  G  Cal.  541. 


154  ORDINAEY  BAILMENTS.  [§   17&. 

man  would  protect  himself  from  liability  in  such  cases,  he  can  do 
so  by  describing  the  goods  as  part  of  a  larger  lot  and  unseparated, 
or  in  bulk  with  the  goods  of  others.  Such  a  description  would  give 
notice  to  any  transferee  of  the  warehouse  receipt  of  the  condition 
of  the  goods  and  enable  him  to  vise  necessary  diligence  in  obtain- 
ing the  title  to  a  specific  property."  Thus  it  will  be  seen  that  the 
usage  of  trade  and  the  general  course  of  business  have  been  con- 
trolling factors  in  determining  the  question  involved ;  that  where 
the  property,  like  grain  in  an  elevator,  is  from  its  nature  prac- 
tically incapable  of  distinction,  and  where  the  storage  is  gen- 
erally understood  to  result  in  commingling  of  the  same,  the 
warehouse  receipt  can  be  satisfied  by  the  delivery  of  grain  of 
the  same  grade,  quality  and  quantity  as  that  stored ;  but  no  such 
rule  as  this  could  be  said  to  be  applicable  or  required  by  usage 
or  the  usual  course  of  business  where  the  property  stored  is  of  a 
kind  that  it  may  be  and  usually  is  kept  separate  and  by  itself. 
As,  for  example,  where  it  is  packed  in  cases,  or  where  it  is  by  its 
very  nature  capable  of  being  identified  and  known  by  its  appear- 
ance and  description;  like  furniture,  books,  cloths,  mechanical 
tools,  and  the  like.     This  distinction  must  necessarily  be  kept 
in  view  in  the  discussion  of  the  next  subdivision  of  our  subject. 
§  179.  Storage-house  keepers. — Storage-houses  are  places  or 
buildings  provided  and  kept  by  persons  or  companies  for  the  stor- 
age and  care  of  goods,  wares  and  merchandise  for  hire,  to  be 
redelivered  in  the  same  condition  as  when  received.     This  term 
only  applies  where  the  safe  custody  and  return  of  the  goods  are 
the  principal  objects  of  the  deposit,  and  not  where  it  is  merely 
incidental,  and  the  keeping  is  as  well  for  the  purpose  of  con- 
sumption or  for  speculation. 

These  storage-houses  are  carried  on  by  private  owners,  and 
often  by  large  storage  companies,  whose  business  is  principally 
the  caring  for  furniture,  household  goods,  and  other  articles 
and  chattels  which  are  expected  to  be  returned  to  the  owner 
upon  demand  and  payment  of  charges. 

In  connection  with  the  business,  and  as  incident  to  it,  the 
storage  companies,  or  storage-house  men,  generally  carry  on  the 
business  of  moving  the  goods  to  and  from  the  place  of  storage, 
and  for  that  purpose  run  moving-vans,  trucks  and  drays,  employ- 
ing their  own  force  of  men  for  handling  the  property. 

This  business  in  most  respects  is  similar  to  that  of  the  ware- 


§  180.] 


LOCATIO  CUSTODI^. 


155 


houseman,  but  has  grown  to  such  proportions  that  mention  of 
it  as  a  business  by  itself  seems  proper.*^ 

§  180.  Must  comply  with  the  contract  for  storage. — The 
warehouseman  or  storage-house  keeper  must  comply  strictly  with 
the  contract  for  storage.  And  where  the  contract  is  to  store  the 
property  in  a  specified  warehouse  it  is  the  duty  of  the  warehouse- 
man to  so  store  it;  and  if  it  is  stored  at  a  different  place  it  is  at 
the  risk  of  the  warehouseman,  and  if  injured  or  destroyed  even 
without  the  fault  or  negligence  of  the  warehouseman  he  is  liable. 

In  Hudson  v.  Columbian  Transfer  Co.,^*  the  court  say:  ''The 
theory  of  the  plaintiff's  case  is  that  the  defendant  broke  its  con- 
tract of  bailment  and  subjected  the  property  to  a  risk  never  con- 


43  Jones  V.  Morgan,  90  N.  Y.  4. 
"Defendant  owned  a  building  in 
the  city  of  New  York,  used  and 
occupied  as  a  storehouse.  Under 
an  agreement  with  plaintiff,  who 
desired  to  store  for  safe-keeping 
certain  household  furniture,  a 
space  was  allotted  to  her  in  said 
building,  and  defendant  assured 
her  that  her  goods  would  be  safe, 
and  would  be  guarded  day  and 
night.  The  allotted  space  was  in- 
closed by  wooden  partitions  with 
a  door,  upon  which  were  two 
locks,  the  key  of  one  of  which 
was  kept  by  plaintiff.  When 
money  was  paid  by  plaintiff  it  was 
receipted  for.  generally  as  paid 
for  storage.  Most  of  the  property 
was  stolen  by  those  in  charge  of 
the  building.  In  an  action  to  re- 
cover damages  the  court  charged, 
in  substance,  that  the  contract 
was  one  of  bailment;  that  defend- 
ant, if  liable  at  all,  was  liable  as 
a  warehouseman,  and  bound  to  ex- 
erise  ordinary  care  and  prudence. 
Held,  no  error.  It  seems  imma- 
terial whether  the  contract  was 
one  of  bailment  or  of  hiring  the 
allotted  room,  as  in  either  case 
defendant  was  bound  to  exercise 
ordinary  care  and  prudence  in 
guarding  the  goods."' 


44  137  Mich.  255,  257,  100  N.  W. 
402,  and  see  cases  cited;  Martin 
V.  Cuthbertson,  64  N.  C.  328; 
Lane  v.  Cameron,  38  Wis.  603; 
Lelley  v.  Doubleday,  L.  R.  7  Q.  B. 
Div.  510;  Bradley  v.  Cunningham, 
61  Conn.  485,  23  Atl.  932,  15  L.  R. 
A.  679;  Line  v.  Mills,  12  Ind.  App. 
100,  39  N.  E.  870;  St.  Losky  v.  Da- 
vidson, 6  Cal.  643.  And  where  it 
appeared  that  the  plaintiff's  man- 
ager asked  the  defendant's  treas- 
urer what  the  storage  on  the 
goods  would  be,  and  at  the  same 
time  notified  him  that  the  ware- 
house company  would  have  to 
store  the  goods  where  they  would 
not  freeze,  and  the  treasurer  of 
defendant  said  that  they  would 
not  freeze  in  their  basement  or 
on  their  third  floor;  and  plaint- 
iff's manager  requested  defendant 
to  acknowledge  the  arrangement 
by  mail,  which  defendant  did  by 
letter,  merely  confirming  the 
charge  to  be  made  for  storage, 
it  was  held  that  a  request  to 
charge  the  jury  that  the  language 
used  in  making  the  contract  did 
not  amount  to  an  agreement  to 
store  the  goods  so  that  they  would 
not  freeze,  was  properly  refused. 
Phenix,  etc.  Co.  v.  Dennis,  etc. 
Co.,  189  Mass.  82,  75  N.  E.  258. 


156  ORDINARY  BAILMENTS.  [§   182. 

templated  by  plaintiff,  nor  assumed  or  assented  to  by  him.  In 
such  a  case  the  rule  is  general  that  the  bailee  assumes  the  risk  of 
the  destruction  of  the  property."  The  owner  is  entitled  to  have 
his  property  remain  in  the  place  contracted  for,  and  if  the 
storage-house  keeper  removes  it  to  another  warehouse  or  place  of 
storage,  without  the  knowledge,  consent  or  approval  of  the  owner, 
no  matter  if  he  deems  it  more  secure,  and  it  is  injured  or  de- 
stroyed, the  storage-house  keeper  will  be  liable  for  the  loss  or  in- 
jury. Nor  is  it  a  defense  that  he  used  more  than  ordinary  dili- 
gence in  trying  to  avoid  the  loss  or  injury,  and  should  it  appear 
that  it  was  an  inevitable  accident,  that  it  was  caused  by  an  act 
of  God,  he  will  be  liable,  because  by  violating  the  contract  for 
storage  he  assumed  the  risk,  and  became  liable  for  a  conversion 
of  the  property. 

And  so  where  it  was  shown  that  the  parties  to  the  agreement 
intended  that  the  property  should  be  stored  at  a  certain  place, 
and  contracted  with  reference  to  storage  there,  the  goods  being 
delivered  by  the  bailor  and  stored  by  the  bailee,  it  is  held  to  be 
an  agreement  to  store  at  that  place,  and  a  conventional  warehouse 
receipt  showing  no  particular  repository  will  not  be  held  to 
change  the  parol  agreement  and  intention  as  to  place  of  stor- 
age."" 

§  181.  Some  of  the  duties  of  the  bailor. — The  bailor,  on 
owner  of  goods  to  be  stored,  may  be  said  to  be  under  obligation 
to  exercise  good  faith  toward  the  bailee,  the  storage-keeper,  in 
respect  to  this  bailment.  Among  other  things,  he  would  be  bound 
to  give  to  the  bailee  full  knowledge  of  the  kind  of  goods  put  into 
his  store-house  in  order  to  bind  the  keeper  to  the  ordinary  liabil- 
ity that  attaches.  If  the  goods  or  property  were  very  valuable,  as 
jewels  or  diamonds,  and  were  secreted  or  hidden  away  among 
the  other  goods,  and  the  knowledge  of  them  kept  from  the  bailee, 
the  bailor  could  not  hold  the  custodian  to  the  same  degree  of  lia- 
bility, if  the  goods  were  lost  or  destroyed,  that  he  might  if  the 
attention  of  the  bailee  had  been  called  to  these  valuable  articles. 

§  182. Dangerous  articles. — It  is  the  duty  of  the  bailor 

not  to  deliver  to  the  bailee  for  storage  any  dangerous  thing,  or 
that  which  might  result  in  danger  or  injury  to  the  property, 
person  or  business  of  the  storage-house  keeper,  or  to  the  property 
of  others  whose  effects  are  being  stored,  without  first  giving  to 

45  McCurdy  v.  Walblom,  etc.  Co.,  94  Minn.  326,  102  N.  W.  873. 


§   185.]  LOCATIO   CUSTODI^^  157 

tlie  keeper  full  knowledg'e  of  the  character  of  the  property,  and 
notice  of  the  danger  in  handling  or  keeping  it ;  and  if  the  bailee 
should  suffer  any  injury  because  of  the  failure  of  the  bailor  to 
thus  do  his  duty,  the  bailor  would  be  liable.  As,  for  example,  if 
the  property  was  very  explosive,  or  if  explosives  were  among 
the  goods  and  chattels,  or  if  the  goods  were  infected  with  con- 
tagious diseases,  it  would  be  the  duty  of  the  bailor  to  fully  ap- 
prise the  bailee  of  the  facts. 

§  183.  When  the  liability  of  the  storage-house  keeper  begins. 
Following  the  rule  already  laid  down,  it  may  be  said  that  this 
liability  commences  at  once  upon  his  obtaining  control  of  the 
property,  and  very  much  would  depend  upon  the  usage  and 
manner  of  doing  the  business.  If  the  property  was  taken  pos- 
session of  at  the  house  or  premises  of  the  owner  and  loaded  upon 
the  truck  or  moving  van  of  the  storage-house  keeper,  the  liability 
would  commence  at  that  time;  for  the  control  and  possession  of 
the  property  would  be  then  in  the  storage-house  keeper.*" 

§  184.  When  the  liability  ends. — It  is  the  duty  of  the  stor- 
age-house keeper  to  deliver  the  goods  to  the  bailor,  or  to  his  or- 
der upon  demand,  and  payment  of  charges  and  the  liability  does 
not  end  until  the  goods  are  so  delivered. 

§  185.  Storage-house  keeper  and  warehouseman  the  same. — 
The  warehouseman  includes  the  storage-house  keeper,  the  latter 
carrying  on  a  species  of  the  business  of  the  warehouseman,  and  by 
making  separate  mention  of  it  here  we  do  not  intend  to  infer 
that  a  distinction  exists,  to  be  pointed  out,  but  that  this  par- 
ticular branch  may  receive  special  notice. 


46  "It  is  held  that  the  liability  of  '  were  destroyed  without  his  fault, 

the  warehouseman  commences  as  and  that  they  must  have  been  so 

soon  as  the  goods  arrive  and  the  destroyed  even  if  no  damage  had 

crane  of  the  warehouseman  is  ap-  previously    occurred.      Powers    v. 

plied  to  raise  them  into  the  ware-  Mitchell,  3  Hill,  545.  So,  if  through 

house.  Thomas  V.  Day,  4  Esp.  262;  the  negligence  of  the  servant  of 

Merritt  v.  Old  Colony,  etc.  R.  Co.,  the  warehouseman,  the  goods  are 

11  Allen,  80,  83.     See  Shepherd  v.  not    delivered    to    the    consignee 

Bristol,  etc.  R.  Co.,  L.  R.  3  Exch.  when  called  for  by  him,  and  they 

189;  Smith  v.  Nashua,  etc.  R.  Co.,  are    destroyed    by    an    accidental 

7  Fost.  (N.  H.)  91.    And  he  is  lia-  fire,    the    warehouseman    will    be 

ble    for    negligent    injury    to    the  held    responsible    for    their    loss, 

goods  while  in  his  possession,  al-  Stevens  v.  Boston  &  Maine  R.  Co., 

though  it  appears  that  after  the  1  Gray,  277." 
happening  of  the  injury  the  goods 


158  OKDINARY  BAILMENTS.  [§    186. 

§  186.  Common  carriers,  when  warehousemen. — It  is  often 
a  very  important  question  to  determine  whether  the  carrier's 
relation  is  that  of  a  common  carrier  or  a  warehouseman.  If  the 
relation  is  that  of  a  common  carrier,  then  his  liability  may  be 
that  of  an  insurer;  but  if  it  is  that  of  a  warehouseman,  then  he 
is  only  liable  for  ordinary  negligence  and  is  held  to  ordinary- 
diligence. 

The  test  which  determines  whether  the  carrier's  relation  is  that 
of  a  warehouseman  or  a  common  carrier  seems  to  be  whether  the 
goods  have  been  delivered  by  the  shipper  for  the  purpose  of  im- 
mediate transportation  without  further  orders.*^  If  the  de- 
livery of  the  goods  is  not  for  immediate  shipment,  but  by  or- 
der of  the  owner  they  are  to  be  detained  for  some  purpose  and 
the  shipment  to  be  some  time  in  the  future,  in  such  case  the 
relation  of  the  carrier  is  that  of  a  warehouseman.  The  general 
rule  is  that,  if  something  remains  to  be  done  after  the  goods  have 
been  delivered  by  order  of  the  shipper,  the  liability  of  the  car- 
rier is  that  of  warehouseman  merely.**  If  the  shipment  is  de- 
layed, however,  through  the  carrier's  acts  and  not  by  the  request 
or  action  of  the  shipper,  in  such  case  the  relation  of  common  car- 
rier is  not  changed  to  that  of  a  warehouseman,  nor  is  the  liability 
changed.  When  the  property  is  delivered  to  the  common  carrier 
it  is  presumed  to  be  for  immediate  shipment;  the  law  presumes 

47Fitchburg  R.  Co.  v.  Hanna,  6  Am.  &  Eng.  R.  Cas.  33.    Where  a 

Gray     (Mass.),    539;     Goodbar    v.  shipper  stores  goods  from  time  to 

"Wabash  R.  Co.,  53  Mo.  App.  434;  time  in  a  railway  warehouse,  load- 

Pittsburg   R.    Co.    v.    Barrett,    36  ing  a  car  when  a  carload  is  ready, 

Ohio   St.   448;    Clark   v.    Needles,  the  responsibility  of  the  railway 

25  Pa.  St.  338.  company  in  respect  to  such  of  the 

48  St.  Louis  R.  Co.  v.  Knight,  goods  as  have  been  specifically 
122  U.  S.  79;  Barron  v.  Eldridge,  set  apart  for  shipment  is  not  that 
100  Mass.  457;  Watts  v.  Boston  R.  of  a  carrier  but  of  a  warehouse- 
Co.,  106  Mass.  467.  Goods  left  in  man;  and  in  case  of  their  accl- 
the  company's  warehouse  for  fut-  dental  destruction  by  fire,  the 
ure  transportation  through  an  ar-  shipper  has  no  remedy  against  the 
rangement  with  the  baggage-mas-  company.  Milloy  v.  Grand  Trunk 
ter  are  in  the  company's  charge  R.  Co.,  21  Ont.  App.  404,  55  Am. 
as  a  warehouseman  only,  regard-  &  Eng.  R.  Cas.  579;  111.  Cent.  R. 
less  of  what  the  baggage-master  Co.  v.  Ashmead,  58  111.  487;  111. 
may  have  agreed,  since  he  had  no  Cent.  R.  Co.  McClellan,  54  111.  58; 
authority  to  bind  the  company.  111.  Cent.  R.  Co.  v.  Hornberger, 
Mulligan  v.  Northern  Pacific  R.  77  111.  457. 
Co..  4  Dak.  315,  29  N.  W.  659,  27 


§  187.]  LOCATIO  CUSTODI^.  159 

this,  and  it  is  the  duty  of  the  carrier  to  at  once  ship  the  prop- 
erty, and  if  he  delays  the  shipment,  he  cannot  by  such  delay 
change  his  liability. 

In  Gregory  v.  Railway  Co^^  it  was  held  that  a  delivery  to  a 
carrier  implies  a  direction  for  immediate  shipment;  and  the  fact 
that  the  shipper  consents  that  the  goods  may  lie  in  the  depot 
until  the  carrier  can  secure  a  car  does  not  relieve  the  carrier 
from  liability  as  an  insurer.^" 

§  187.  As  to  goods  awaiting  delivery. — As  to  when  the  rela- 
tion of  warehouseman  takes  the  place  of  that  of  a  common  car- 
rier as  to  goods  that  have  been  transported  to  their  destination 
and  are  in  the  vehicles  or  warehouses  of  the  carrier  awaiting 
delivery  to  the  consignee,  the  authorities  are  not  entirely  har- 
monious. There  is  a  class  of  cases  which  holds  that  when  the 
carrier  has  transported  the  goods  in  compliance  with  his  con- 
tract of  affreightment  and  has  them  in  his  cars  ready  to  be  un- 
loaded, if  the  goods  are  such  as  the  consignee  usually  takes  from 
the  cars,  or  in  the  freight  houses,  if  of  the  kind  of  goods  that 
are  usually  unloaded  and  put  into  the  freight  houses  by  the  car- 
rier, the  carrier  has  done  his  whole  duty,  and  it  is  the  duty  of 
the  consignee  to  call  for  and  take  the  goods  away  without  notice 
from  the  company;  and,  that  during  the  time  the  goods  are  held 
at  their  destination  awaiting  delivery  to  the  consignee,  the  car- 
rier's liability  as  such  does  not  attach,  but  is  limited  to  that  of 
a  warehouseman,  and  he  is  only  liable  as  such.  That  is  to  say,  he 
is  no  longer  an  insurer,  but  a  custodian  of  the  property,  a  locatio 

49  46  Mo.  App.  474;  Gulf,  etc.  R.  carrier   does    not   begin    as    such 

Co.     V,     Trawiclr,     80     Tex.     270.  until  there  has  been  a  complete 

"Where  a  railroad  company  erects  delivery  of  the  goods  for  immedi- 

a    platform    for    the    purpose    of  ate  transportation  with  the  knowl- 

shipping  cotton,  and  its  course  of  edge  and  consent  of  the  carrier, 

business   is   such   that  it  induces  Louisville,  etc.  R.  Co.  v.  U.  S.,  39 

parties  to  store  cotton  on  it  under  Ct.    CI.    405.      And    where    a   rail- 

a  promise  to  ship  such  cotton  by  road  company  finds  goods  in  one 

the  next  freight  train,  but  instead  of  its  cars  without  bill  of  lading 

of   doing  so   allows   the   train   to  or  other  instructions  and  removes 

pass   without   taking  on   the   cot-  them  to  a  storehouse,  requesting 

ton,  it  is  responsible  as  a  common  and   awaiting   instructions   which 

carrier  for  the  cotton,  and  is  lia-  are  not  furnished,  the  liability  is 

ble    for    its    subsequent    loss    by  that  of  a  warehouseman,  and  not 

fire."      Meyer   v.    Vicksburg,    etc.  of  a  common  carrier.     Louisville, 

R.  Co.,  41  La.  Ann.  639.  etc.   Co.   v.  United   States,   39   Ct. 

«o  But  the  liability  of  a  common  CI.  405. 


160 


ORDINARY  BAILMENTS. 


[§  188- 


custodies  bailee,  liable  for  ordinary  negligence  and  bound  to 
exercise  ordinary  diligence.  And  so,  if  the  goods  while  so  held 
are  destroyed,  or  injured,  or  lost,  without  the  negligence  of  the 
carrier  in  whose  possession  they  are,  he  is  not  liable. 

This  rule  has  been  called  and  is  known  as  the  Massachusetts 
rule,  and  is  followed  by  the  courts  in  several  other  states." 

§  188.  The  New  Hampshire  rule. — Another  line  of  cases 

holds  to  what  has  been  called  the  New  Hampshire  rule,  which 
is  quite  like  the  Massachusetts  rule  except  that  it  holds  the  car- 
rier to  the  full  carrier's  liability  for  a  reasonable  time  after  the 
arrival  of  the  goods  which  is  given  to  the  consignee  to  call  for 
them,  inspect  them,  and  take  them  away 

The  rule  does  not  require  that  notice  be  given  to  the  consignee 
of  the  arrival,  but  seems  to  presume  that  he  knows  when  the 
freight  was  shipped  and  when,  in  due  course  of  transportation, 
it  ought  to  arrive,  and  then  allows  for  the  consignee  reasonable 
time  after  its  actual  arrival  to  take  it  from  the  carrier's  custody; 
if  it  is  left  beyond  that  reasonable  time,  the  carrier,  as  to  the 
goods,  becomes  a  warehouseman  and  only  liable  as  such.^- 


51  Blaisdell  v.  Railway  Co.,  145 
Mass.  132.  In  Bassett  v.  Railway- 
Co.,  145  Mass.  129,  the  court  say: 
"The  plaintiff  had  employed  the 
defendant  as  a  common  carrier  to 
transport  his  goods  to  Chicopee. 
He  voluntarily  entered  into  an 
agreement  which  involved  the 
subject  of  the  defendant's  liabil- 
ity for  loss  of  the  property  or  in- 
jury to  it  from  any  cause,  and 
which  determined  his  right  as 
definitely,  under  the  contract  im- 
plied by  law,  as  if  the  parties  had 
written  out  and  signed  stipula- 
tions in  detail.  The  defendant 
was  bound  to  carry  the  goods  and 
was  an  insurer  of  them  until  the 
transit  ended,  and  was  then  lia- 
ble, as  a  warehouseman,  for  any 
want  of  ordinary  care  during  such 
reasonable  time  as  they  should  re- 
main in  its  custody  awaiting  the 
call  of  the  consignee.  This  was 
the  extent  of  its  liability."     Lane 


V.  Railway  Co.,  112  Mass.  455; 
Barron  v.  Eldridge,  100  Mass.  455; 
Rice  V.  Railway  Co.,  98  Mass.  212. 
The  leading  case  upon  this  doc- 
trine is  an  earlier  Massachusetts 
case,  Thomas  v.  Railway  Co.,  10 
Mete.  476,  where  the  court  dis- 
cusses in  detail  the  rule  and  the 
theory.  Some  of  the  states  have 
followed  the  Massachusetts  rule: 

Illinois. — Gregg  v.  Railway  Co., 
147  111.  550;  Porter  v.  Railway  Co., 
20  111.  107;  Railway  Co.  v.  Jenkins, 
103  111.  599;  Railway  Co.  v.  Friend, 
64  111.  303;  Railway  Co.  v.  Scott, 
42  111.  132. 

Indiana. — Cincinnati,  etc.  R.  Co. 
V.  McCool,  26  Ind.  140. 

Iowa. — Mohr  v.  Railway  Co.,  40 
Iowa,  578. 

This  rule  is  also  followed  in 
Georgia,  Missouri,  North  Carolina, 
Pennsylvania  and  Tennessee.  See 
cases  cited  in  note,  post,  §  581. 

52  McDowell  V.  Railway  Co.,  34 


§  190.]  LOCATIO  CUSTODI^.  161 

§  189. The  third  class  of  cases. — ^A  third  class  of  cases 

holds  to  still  a  different  rule,  and,  as  it  seems  to  us,  the  best 
reasoned  rule  and  having  the  weight  of  authority.  These  cases 
hold  the  correct  rule  to  be  that,  upon  the  arrival  of  the  goods 
at  their  destination,  it  is  the  duty  of  the  carrier  to  give  to  the 
consignee  reasonable  notice  that  the  goods  have  arrived  and  to 
call  at  the  company's  warehouse  and  receive  them  and  pay  the 
freight,  and  until  such  notice  has  been  given  and  a  reasonable 
time  has  expired  after  the  giving  of  such  notice  and  to  receive  the 
goods,  the  carrier  w411  be  held  to  the  extraordinary  liability  of  a 
carrier,  and  not  until  after  the  time  of  such  reasonable  notice 
expired  will  his  liability  be  limited  to  that  of  a  warehouseman. 
This  has  sometimes  been  called  the  New  York  rule.  There  is  no 
reason  why  it  should  be  so  called,  as  this  state  did  not  lead  in  the 
establishment  of  the  doctrine,  although  it  has  steadily  held  to  it 
with  other  states.    This  is  also  the  rule  in  England.^^ 

This  question  will  be  further  discussed  in  our  consideration  of 
the  duties  and  liabilities  of  common  carriers,  to  which  it  perhaps 
more  properly  belongs;  our  object  here  being  simply  to  point 
out  the  creation  of  the  locatio  custodice  bailments  as  related  to 
carriers. 

Second. 

§  190.  Wharfingers. — A  wharfinger  is  one  who  maintains  a 
wharf  for  hire  for  the  accommodation  of  vessels  in  receiving  or 
discharging  their  cargoes,  either  freight  or  passengers,  for  the 
use  of  shippers  in  forwarding  freight,  goods,  wares  and  merchan- 

N.  Y.  947.  See  also  Angell  on  Car-  Perhaps  the  first  case  that  took 
riers,  sec.  313,  and  a  long  list  of  issue  with  the  Massachusetts  rule 
cases  collected  and  cited  from  was  the  case  of  Moses  v.  Rail- 
New  York  and  other  states,  5  Am.  way  Co.,  32  N.  H.  523.  The  fol- 
&  Eng.  Encyl.  of  Law  (2d  ed.),  lowing  states  may  be  said  to  have 
266.  adopted  this  rule:  Alabama,  Ver- 
sa Mtc^iigran.*  McMillan  v.  Rail-  mont,  Wisconsin,  Kentucky,  New 
way  Co.,  16  Mich.  79,  93  Am.  Dec.  Jersey,  Louisiana  and  Kansas.  A 
208;  Buckley  v.  Railway  Co.,  18  reasonable  time  after  notice  to 
Mich.  121;  Feige  v.  Railway  Co.,  consignee  to  remove  the  goods 
62  Mich.  1;  Black  v.  Ashley,  80  the  carrier's  liability  is  changed 
Mich.  90;  Walters  v.  Detroit,  etc.,  to  that  of  warehouseman.  Becker 
Ry.,  139  Mich.  303,  102  N.  W.  745.  v.  Penn.  R.  Co.,  96  N.  Y.  S.  1,  109 
Minnesota:  Kirk  v.  Railway  Co.,  App.  Div.  230.  Where  the  agent 
59  Minn.  161.  Following  this  are  of  consignee  removes  most  of  the 
also  Nebraska,  Ohio  and  Texas.  consignment  of  freight  from  the 
11 


162  ORDINARY  BAILMENTS.  [§   191. 

dise,  for  consignees  for  receiving  freight  and  caring  for  it  until 
delivery.  His  duties  and  liabilities  are  not  unlike  those  of  a 
warehouseman.  Like  the  warehouseman  he  is  liable  for  all  losses 
which  happen  through  his  neglect  to  exercise  ordinary  dili- 
gence.^* 

§  191.  When  liability  begins. — The  wharfinger  cannot  be 
charged  with  any  responsibility  until  the  goods  are  delivered 
into  his  possession  and  he  has  the  control  of  them.  It  therefore 
follows  that  in  order  to  hold  the  wharfinger  for  loss  or  injury  to 
the  property  it  must  appear  that  he  had  control  of  it.  And  in 
Blin7i  V.  Mayo  the  court  held:  "That  a  mere  delivery  of  the 
goods  at  the  wharf  is  not  necessarily  a  delivery  to  the  owners 
as  wharfingers.  The  usages  of  business  in  the  vicinity  are  of  im- 
portance to  show  when  a  wharfinger  acquires  and  when  he  ceases 
to  have  the  custody  of  the  goods  in  that  capacity  as  in  the  case 
of  common  carriers. ' '  ^^ 

In  some  localities  the  usage  of  business  requires  that  the  whar- 
finger should  be  notified  when  the  goods  are  delivered  to  him 
or  upon  his  wharf,  and  it  may  be  said  that  it  is  generally  held 
by  the  courts  that  the  wharfinger's  liability  does  not  begin  until 
the  goods  are  so  delivered  and  he  has  notice  of  such  delivery.^^ 

car,  but  leaves  some  of  it  on  ac-  Must  exercise  ordinary  diligence, 

count   of   approaching   night,   the  Garfield,  etc.,  Co.  v.  Rockland,  etc., 

carrier  as  to  the  freight  left  is  a  Co.,  184  Mass.  60;   Barber  v.  Ab- 

gratuitous  bailee  and  liable  only  endroth,   102   N.   Y.   406,   55   Am. 

for  gross  negligence.   C.  D.  Kenny  Rep.  821. 

Co.  V.  Atlanta,  etc.,  R.  Co.,  122  Ga.  55  Blinn  v.  Mayo,  10  Vt.  56. 
365,  50  S.  E.  132.  se  Packer  v.  Getman,  6  Cowen 
54  Cox  V.  O'Reilly,  4  Ind.  368.  (N.  Y.),  757,  was  an  action  of 
"Wharfingers  are  not  like  com-  trover  to  recover  the  value  of  a 
mon  carriers  answerable  for  all  box  of  dry  goods  alleged  to  have 
goods  that  may  be  intrusted  to  been  delivered  to  the  defendant 
them  in  their  line  of  business,  ex-  as  master  of  a  canal  boat,  to 
cept  such  as  may  be  lost  by  the  be  transported  from  Albany  to 
act  of  God  or  the  public  enemy.  Charlestown.  The  court  say:  "Ad- 
They  are  responsible  for  loss  only  mitting  that,  according  to  the 
which  happens  through  a  neglect  usual  custom  and  understanding 
to  exercise  reasonable  and  ordi-  of  parties,  a  delivery  on  the  dock 
nary  care  and  diligence.  They  near  a  boat  is  a  good  delivery  so 
are  in  the  same  category  in  this  as  to  charge  the  carrier,  it  must 
particular  with  warehousemen."  always  be  accompanied  with  ex- 
Schmidt  V.  Blood,  9  Wend.  (N.  Y.)  press  notice,  otherwise  he  is  not 
268,  24  Am.  Dec.  143;  Blinn  v.  answerable." 
Mayo,  10  Vt.  56,  33  Am.  Dec.  175. 


§  193.]  LOCATIO  CUSTODI^.  163 

§  192,  When  the  liability  ends. — The  wharfinger  often  stands 
between  the  shipper  and  the  common  carrier,  or  between  two 
connecting  carriers.  The  property  is  delivered  upon  his  wharf 
for  the  purpose  of  shipment  by  boat,  or  to  be  delivered  to  some 
connecting  carrier ;  and  hence  it  often  becomes  very  important  to 
determine  not  only  when  his  liability  begins  but  when  it  ends. 
Property,  too,  is  often  delivered  upon  the  w^harf  of  the  whar- 
finger to  be  by  him  delivered  to  the  warehouseman.  The  gen- 
eral rule  is  that  the  liability  of  the  wharfinger  ends  when  he 
ceases  to  have  control  of  the  property;  when  he  has  delivered  it 
either  to  the  shipper,  the  warehouseman,  the  railroad  company  or 
to  the  consignee.^^ 

It  is  true  that  usage  and  the  general  course  of  business  has 
much  to  do  with  determining  what  is  actually  necessary  in  de- 
livering the  property.  As,  for  example,  a  long-continued  course 
of  business  or  usage  in  accepting  property  that  is  delivered 
upon  the  wharf  in  a  certain  place,  or  placed  in  the  charge  of 
certain  individuals,  or  servants  of  the  wharfingers,  or  the  delivery 
of  goods  in  accordance  with  a  long-continued  usage,  as  the  de- 
livery of  property  to  the  officers  of  the  ship,  may  have  very 
much  to  with  determining  whether  or  not  there  has  been  a 
proper  delivery.  And  so  in  the  case. cited  {Cobban  v.  Downe) 
Lord  Ellenborough  said:  "The  defendant  has  proved  that  by 
established  usage  the  goods  are  delivered  by  the  wharfinger  to  the 
mate  and  crew  of  the  vessel  which  is  to  carry  them ;  from  which 
time  it  has  been  considered  that  their  responsibility  is  then  at  an 
end." 

§  193,  Factors  or  commission  merchants. — Factors  or  com- 
mission merchants  belong  to  this  class  of  bailees.  They  have  cus- 
tody of  the  property  they  are  authorized  to  sell;  they  are  em- 
ployed as  agents  of  the  owners  to  sell  goods  or  merchandise  con- 
signed or  delivered  to  them  by  or  for  their  principals  and  for 
a  compensation  called  factorage  or  commission. 

While  the  goods  or  property  remains  in  their  hands,  they  have 

57  In  Cobban  v.  Downe,  5  Esp.  to  an  officer  or  person  accredited 
41,  Lord  Ellenborough  says:  "Un-  on  board  the  ship;  it  cannot  be 
doubtedly  where  the  responsibil-  delivered  to  the  crew  at  random; 
ity  of  the  ship  begins,  that  of  the  but  the  mate  is  such  a  recognized 
wharfinger  ends;  and  a  delivery  officer  on  board  the  ship  that  de- 
to  the  ship  creates  a  liability  livery  to  him  would  be  a  good  de- 
there;   but  the  delivery  must  be  livery." 


164  ORDINARY  BAILMENTS.  [§    194. 

the  custody  or  control  of  it,  and  from  the  time  they  receive  and 
take  possession  of  the  property  they  are  liable  as  custody  bailees ; 
and  they  are  held  to  the  same  degree  of  diligence,  to  wit,  ordi- 
nary diligence,  and  are  liable  for  ordinary  negligence.  Their 
liability,  however,  will  be  more  particularly  discussed  when  we 
reach  that  subject. 

The  factor  of  the  commission  merchant,  must  exercise  good 
faith  in  caring  for  the  property  and  in  performance  of  his  duty 
to  his  bailor.  He  can  sell  the  property,  but  has  no  authority  to 
pawn,  pledge  or  mortgage  it,  and  like  other  bailees  of  this  class 
he  must  act  according  to  the  general  usage  of  trade.  In  holding 
himself  out  as  a  factor  or  commission  merchant  to  the  public,  he 
guarantees  that  he  possesses  the  skill,  judgment  and  ability  that 
is  possessed  by  the  ordinary  factors  and  commission  merchants 
in  his  vicinity.  It  therefore  follows  that  he  must  be  held  to 
exercise  that  skill,  judgment  and  knowledge  that  is  possessed  by 
the  ordinary  bailee ;  it  is  not  enough  that  he  has  exercised  good 
faith.^« 

The  factor  cannot  substitute  for  the  goods  consigned  to  him 
other  goods  of  the  same  kind.  If  this  were  allowed  it  would 
give  to  the  factor  the  right  of  converting  the  property  of  the 
consignor  to  his  own  use,  and  instead  of  being  a  bailee  of  the 
property  he  could  assume  the  character  of  debtor  to  the  owner 
of  the  property  without  his  consent.  His  duty  is  to  receive  the 
goods  from  the  consignor  and  follow  implicitly  the  directions 
and  instructions  given  him  with  reference  to  them;  or  if  there 
are  no  such  explicit  instructions  or  directions,  then  he  must  take 
due  care  of  the  property  while  in  his  possession  and  dispose  of 
•it,  following  the  general  usage  of  the  trade. 

Third. 

§  194.  Safe  deposit  and  trust  companies. — An  extensive  and 
increasingly  important  business  has  been  developed  within  com- 
paratively the  last  few  years  among  bankers  and  trust  com- 
panies in  furnishing  to  their  customers  and  the  public,  for  a 
compensation,  privileges  in  banks  and  safe  deposit  vaults  by  way 
of  leasing  to  them  control  of  drawers  or  safes  where  they  may 
keep  deeds,  securities,  stock,  moneys  and  valuable  papers.     The 

58  story  on  Bailments,  sec.  395;  Weaver  v.  Poyer,  70  111.  567;  Dunbar 
V.  Gregg,  44  111.  App.  527. 


§   195.]  LOCATIO  CUSTODI^.  165 

customers  have  keys  to  their  own  individual  drawers,  boxes  or 
places  of  deposit  and  access  to  them  as  they  please  from  time  to 
time;  the  proprietor  or  safe  deposit  owner  taking  charge  of  the 
room  or  vault  in  which  these  boxes  are  situated  and  often  keep- 
ing watchmen  or  agents  to  guard,  care  for  and  protect  them 
from  intrusion  or  occupancy  by  strangers  or  other  customers 
except  to  examine  and  have  access  to  their  own  drawers,  safes 
or  boxes. 

These  safety  deposit  vaults  are  under  the  supervision  and 
control  of  the  bank  or  trust  companies  but  the  boxes  or  safes  are 
set  apart  for  the  use  of  their  customers,  and  are  controlled  as  to 
their  contents,  by  the  customers. 

§  195.  The  relation  between  the  depositor  and  the  safe  de- 
posit company. — The  relation  created  because  of  the  business 
and  course  of  business  in  these  cases  has  generally  been  conceded 
to  be  that  of  bailor  and  bailee  and  yet  to  call  it  that,  does  not 
seem  to  be  entirely  satisfactory  in  view  of  the  conceded  legal 
definition  and  status  of  a  bailment  relation  as  it  runs  counter  to 
certain  requisites  of  that  relation.  To  illustrate:  it  is  a  fixed 
and  conceded  principle  in  the  law  of  bailments  that  the  bailee 
has  the  possession  and  control  of  the  subject  matter  of  the  bail- 
ment to  the  exclusion  of  the  bailor  while  in  the  case  of  renting 
or  occupying  the  drawer  or  safe  in  the  vault  of  the  trust  com- 
pany or  banking  house,  the  possession  of  the  chattels  deposited 
there  does  not  change  but  continues  with  the  owner  who  puts  them 
in  the  drawer,  box  or  safe  rented  from  the  company,  has  the  key 
and  can  lock  it  up,  and  control  it  as  his  own  private  receptacle. 
The  situation  was  well  illustrated  in  the  case  of  Gregg  v.  Ham- 
lin,^^  where  the  plaintiff  sought  to  garnishee  the  safe  deposit 
company.  Judge  Sharswood  in  the  opinion  discussed  somewhat 
the  question  involved,  holding  that  the  possession  of  the  con- 
tents of  the  box  or  safe  in  the  safe  deposit  vault  was  in  the  renter, 
he  having  the  key,  and  the  valuable  papers  and  property  being 
locked  in  the  box.  The  court  was  asked  to  make  an  order  that 
the  safe  deposit  company  be  allowed  to  break  open  the  drawer 
and  file  an  inventory  of  its  contents  with  its  disclosures  but  the 
court  refused,  saying  that  there  was  nothing  due  from  the  gar- 
nishee defendant  to  the  owner  of  the  box  or  drawer  and  he  did 
not  have  control  of  any  property,  money  or  deposits  made  by  the 

59  8  Phila.  (Pa.)  91. 


166  ORDINARY  BAILMENTS.  [§    196. 

principal  defendant  nor  any  of  his  goods  or  chattels  in  his  pos- 
session and  that  the  act  did  not  apply. 

Another  test  that  might  be  applied.  If  without  any  fault  of 
the  safe  deposit  coinpany  the  depositor  or  renter  of  the  box  or 
safe  should  be  deprived  of  the  possession  of  property  deposited 
in  the  drawer  or  box  kept  in  the  vault  or  banking  house,  could 
the  safe  deposit  company  sustain  an  action  of  replevin  for  the 
property?  Certainly  not  and  for  the  very  apparent  reason,  that 
the  company  is  not  entitled  to  the  possession  of  it.  Upon  what 
principle  theu  can  it  be  contended  that  this  relation  meets  the 
requisites  of  a  bailment  of  property?  It  would  therefore  seem 
upon  principle  that  we  must  conclude  that  because  the  relation 
existing  between  the  parties  will  not  meet  these  commonly  ap- 
plied tests,  because  the  possession  of  the  subject  matter,  the  prop- 
erty kept  in  the  box,  drawer  or  safe,  is  legally  in  the  owner  and 
he  at  no  time  parts  with  it,  that  at  most  the  relation  is  but  a 
quasi  bailment  relation  where  the  parties  are  bound  to  exercise 
the  same  degree  of  diligence  and  are  subjected  to  the  same  lia- 
bility, as  parties  to  a  mutual  benefit  bailment,  but  differing  in 
their  relation  to  the  property,  the  actual  possession  remaining  in 
the  owner  and  not  passing  to  the  proprietor  of  the  safe  deposit 
vault. 

§  196.  The  nature  of  the  relation — The  liability  of  the  par- 
ties.— For  the  reasons  stated,  therefore,  it  would  appear  that  the 
relation  is  not  that  of  bailor  and  bailee  in  the  full  meaning  of  that 
relation  but  that  it  answers  more  nearly  to  that  of  landlord  and 
tenant  or  of  leasing  space  in  the  deposit  vault  or  banking  house, 
or  at  most  a  quasi  bailment  relation.  The  question  has  not  often 
been  before  the  courts  but  generally  it  has  been  held  to  be  a  bail- 
ment. In  Jo7ies  V.  Morgan  '^°  allusion  was  made  to  the  relation 
in  this  class  of  cases  and  it  seems  to  have  been  held  to  be  a  bail- 
ment. In  that  case  the  plaintiff*  claimed  that  she  had  hired  stor- 
age for  her  goods  in  defendant's  warehouse  and  that  his  liability 
was  that  of  a  warehouseman,  bound  to  exercise  ordinary  care  and 
diligence  in  keeping  the  goods,  while  the  defendant  claimed  that 
the  plaintiff  hired  the  room  in  which  she  placed  her  goods  and 
that  the  relation  between  the  parties  if  any  existed  was  that  of 
landlord  and  tenant  with  the  responsibility  on  his  part  which 
such  a  relation  implied.     The  court  held  that  it  was  not  abso- 

e«90  N.  Y.  4. 


§    196.]  LOCATIO   CUSTODI^.  167 

lutely  essential  to  determine  this  difference  in  the  contention  of 
the  parties,  because  whichever  way  it  was,  the  defendant  was 
bound  to  exercise  ordinary  care  and  prudence  in  guarding  the 
property.  ' '  That  such  a  responsibility  was  imposed  upon  him  by 
the  very  nature  of  the  transaction.  The  plaintiff  was  seeking  a 
safe  place  for  the  storage  of  her  goods,  the  defendant  had  a  stor- 
age house  in  which  the  business  was  the  care  of  goods  and  he  as- 
sured her  that  her  goods  would  be  safe  therein  and  that  they 
would  be  under  the  care  of  a  watchman  by  night  and  a  responsi- 
ble or  reliable  man  by  day.  The  price  for  the  space  in  the  stor- 
age house  allotted  to  plaintiff  was  fixed  in  reference  to  these  cir- 
cumstances. The  parties  could  not  have  intended  that  defend- 
ant was  to  take  no  care  of  the  goods,  the  very  nature  of  the  con- 
tract and  the  relation  between  the  parties  imposed  upon  the  de- 
fendant the  obligation  of  ordinary  care  and  prudence  in  keeping 
the  goods.  It  is  like  the  case  of  one  who  hires  a  box  contained  in 
the  safe  of  a  safe  deposit  company.  He  may  keep  the  key  but 
the  company  without  special  contract  to  that  effect  would  be  held 
at  least  to  ordinary  care  in  keeping  the  deposit  and  the  duty  of 
such  care  would  arise  from  the  nature  of  the  business  it  was 
carrying  on  and  the  obligation  to  discharge  it  would  be  implied 
from  the  relation  between  the  parties." 

"Whatever,  then,  the  relation,  all  unite  in  saying  that  the  trust 
company  or  banking  house  furnishing  the  safe  deposit  vaults, 
must  exercise  ordinary  diligence  in  guarding  and  caring  for  the 
boxes  or  safes  rented,  a  diligence  commensurate  with  the  usual 
and  ordinary  needs  for  care  and  watchfulness,  which  more  or 
less  depends  on  the  location,  the  articles  kept  in  deposit  and  the 
usual  surroundings.^^^  Because  of  the  undertakings  of  the  com- 
pany to  watch  over  and  care  for  the  kind  of  property  usually 
deposited,  the  ordinary  care  demanded  is  that  care  and  dili- 
gence ordinarily  exercised  by  keepers  of  safe  deposit  vaults  un- 
der like  circumstances  and  surroundings.^^ 

6oa  Where     plaintiff     rented     a  money  was  justified,  and  that  the 

safe  .in   a   deposit   vault   and   re-  burden  was  on  the  defendant  to 

ceived  only  one  of  two  keys,  and  show  he  used  diligence.   Cussen  v. 

his    money    was    taken    from    the  Southern  Cal.   Savings  Bank,  133 

vault  when  in  charge  of  boys  who  Cal.  534,  65  Pac.  1099. 

were   paid   small   salaries    and   as  ei  where     defendant    permitted 

to  whose  honesty  defendant  was  the  property  to  be  taken  upon  an 

ignorant,    a    finding    that    defend-  illegal  writ,  it  was  held  that  the 

ant  was  negligent  in  guarding  the  defendant  failed  to  use  that  care 


168  ORDLNABY  BAILMENTS.  [§   198. 

Fourth. 

§  197.  Other  classes  of  custodians. — There  are  other 

classes  of  business  and  persons  that  should  be  mentioned  as  be- 
longing to  the  class  of  custodians  under  discussion;  as,  for  ex- 
ample, officers  who  have  in  their  custody  property  taken  upon 
writs  of  execution  or  attachment,^^  administrators  who  have  in 
their  possession  and  under  their  control  the  personal  effects  of 
estates,  innkeepers  who  have  charge  of  the  baggage  and  effects 
of  their  guests,  pledgees  who  hold  property  as  security  for  the 
payment  of  money  or  the  performance  of  an  obligation,  and  nu- 
merous other  examples  which  might  be  mentioned.  In  all  these 
cases,  as  in  the  examples  which  we  have  thus  far  discussed,  the 
question  which  determines  whether  the  bailment  belongs  to  the 
locatio  custodier  bailment  is,  is  the  custody  and  care  of  the  prop- 
erty wholly  without  benefit  to  the  bailee  either  directly  or  indi- 
rectly ?  If  it  is,  it  does  not  belong  to  this  class  of  bailments,  but 
is  a  mere  depositum — a  gratuitous  bailment.^^ 

§  198.  Liability  of  bailee  in  custodiae  bailments. — The  gen- 
eral rule  governing  the  liability  of  the  bailee  in  this  class  of 
bailments — "mutual-benefit  bailments" — has  been  often  stated 
and  is  well  understood,  but  at  this  time  it  is  necessary  to  make 
special  application  of  that  rule  to  the  several  kinds  and  classes  of 

and  diligence  the  law  required  in  ble  for  the  loss  of  a  special  de- 

the  particular  case.     Onderkirk  v.  posit  occurring  through   want   of 

Cent   Nat.   Bank,   119   N.  Y.   263.  that  degree   of   care   which   good 

The   court  say:    "It  is   no   doubt  business   men   would   exercise   in 

true  that  a  bailee  for  reward,  such  keeping   property   of   such   value, 

as  the  defendant  was,  may  excuse  First  Nat.  Bank  v.  Zent,  39  Ohio 

himself  for  a  failure  to  deliver  the  St.  105;  Ray  v.  Bank  of  Kentucky, 

property  to  the  bailor  when  called  10  Bush  (Ky.),  344. 

for  by  showing  that  the  property  62  Bobo     v.     Patton,     6     Heisk. 

was    taken    out    of    his    custody  (Tenn.)  172. 

under  the  authority  of  valid  legal  es  As  to  officers  holding  prop- 
process,  and  that  within  a  reason-  erty  upon  writs,  etc.,  Blake  v. 
able  time  he  gave  notice  of  that  Kimball,  106  Mass.  115;  Cross  v. 
fact  to  the  owner.  Bliven  v.  Hud-  Brown,  41  N.  H.  283;  Aurentz  v. 
son  River  R.  Co.,  36  N.  Y.  403;  Porter,  56  Pa.  St.  115.  As  to  the 
Western  Transfer  Co.  v.  Barber,  liability  of  sheriffs,  officers  whose 
56  N.  Y.  544;  Brookman  v.  Ham-  duty  is  performed  for  recompense, 
ill,  43  N.  Y.  554;  Safe  Deposit  and  those  who  are  finders  of  prop- 
Co.  V.  Pollock,  85  Pa.  St.  391.  erty  when  stimulated  by  offers  of 
The  Ohio  court  has  said  that  in  reward,  Cummings  v.  Gann,  52  Pa. 
this  class  of  cases  a  bank  is  lia-  St.  484. 


§  199.]  LOCATIO  CUSTODI^.  169 

locatio  custodice  bailments;  the  relation  being  the  ''letting  of 
care  and  custody ' '  for  hire  to  the  bailee,  ordinary  diligence  upon 
his  part  is  required,  and  he  will  be  liable  for  ordinary  negligence. 

The  general  definition  of  ordinary  diligence  has  been  often 
referred  to,  and  we  have  seen  that  being  a  relative  term,  it  is 
sometimes  difficult  to  apply  it  to  a  given  case.  The  action  of  an 
ordinarily  prudent  man  under  just  such  circumstances  in  mat- 
ters of  his  own  cannot  be  measured  and  limited  so  as  to  arrive 
at  the  precision  necessary  to  formulate  a  precise  legal  definition 
that  will  remove  the  question  from  the  realm  of  facts  for  the  de- 
termination of  the  jury  to  that  of  a  question  of  law  to  be  con- 
strued by  the  court.  Therefore,  each  case  must  be  determined 
upon  its  own  facts  by  the  aid  of  definitions,  requirements  and 
limitations  that  the  law  furnishes.  The  law,  we  know,  requires 
that  the  bailee  shall  exercise  ordinary  prudence  in  caring  for  the 
property  in  his  custody ;  that  care  which  ordinarily  prudent  men 
as  a  class  would  exercise  in  caring  for  their  own  property,  under 
just  such  circumstances;  but  what  that  care  is  must  always  be 
determined  under  proper  instructions  by  the  jury,  or,  if  there  is 
no  jury,  by  the  court,  as  a  matter  of  fact. 

§  199.  When  does  the  liability  commence  and  end. — The  lia- 
bility of  the  bailee  in  this  class  of  bailments  is  for  the  care  and 
custody  of  the  property  placed  in  his  possession  and  control ;  it 
therefore  follows  that  his  liability  does  not  begin  until  he  has 
the  possession  and  control  of  the  property,  and  continues  until 
the  possession  and  control  is  surrendered  to  the  bailor,  or  his 
order  or  assigns,  or  to  the  rightful  owner. 

A  practical  question  sometimes  arises  between  the  common 
carrier  and  the  warehouseman  as  to  when  the  carrier's  liability 
ceases  and  the  warehouseman 's  liability  begins ;  or  in  cases  where 
the  carriers  are  proprietors  of  warehouses,  when  their  liability 
as  carriers  ceases,  and  their  liability  as  warehousemen  begins; 
whether  they  are  still  subject  to  the  extraordinary  liability  of 
insurers,  or  simply  liable  for  negligence  in  caring  for  the  prop- 
erty. 

An  early  case  in  New  York  (DeMott  &  Ingersoll  v.  Laraway)^* 
is  in  this  respect  interesting.  A  common  carrier,  Laraway,  was 
the  owner  and  master  of  a  canal  boat,  and  received  on  board  his 
boat  at  Troy  a  hogshead  of  molasses  and  other  goods  to  be  trans- 

84  14  Wend.  225. 


170  ORDINARY  BAILMENTS.  [§   199. 

ported  to  Kidder's  Ferry.  All  the  goods  were  safely  unloaded 
except  the  molasses;  in  an  attempt  to  hoist  the  molasses  from 
the  boat  into  the  warehouse,  and  when  the  hogshead  was  nearly 
even  with  the  door,  the  tackle  attached  to  the  warehouse  broke, 
the  hogshead  fell  into  the  boat  and  was  broken,  and  the  molasses 
nearly  all  lost.  The  court  held  that  Laraway  was  obliged  to  de- 
liver the  goods  in  safety.  The  delivery  was  not  complete  when 
the  accident  happened,  and  the  goods  were  still  at  the  risk  of 
the  carrier,  and  that  it  was  a  matter  of  no  importance  that  the 
machinery  employed  in  unloading  the  molasses  was  attached  to 
the  warehouse  and  belonged  to  it  and  not  to  the  carrier.  It  was 
pro  hac  vice  his  tackle,  and  he  was  responsible  for  its  sufficiency ; 
the  liability  of  the  carrier  continuing  until  the  goods  were  de- 
livered."^ 

The  whole  matter  is  a  question  as  to  who  has  taken  control  of 
the  property.  In  Merritt  v.  Old  Colony  R.  Co.^^  it  would  seem 
at  first  blush  that  a  different  holding  was  made  than  in  DeMott 
V.  Laraway.  In  that  case  an  engine  was  carried  by  a  truckman 
to  the  defendant's  depot  to  be  shipped  upon  its  railway.  The  de- 
fendant's agent  directed  the  truckman  to  back  his  truck  up  to 
the  track  near  a  derrick  that  was  used  by  the  defendant  in 
hoisting  heavy  freight,  and  that  a  car  would  be  placed  there  by 
the  employes  of  the  defendant,  who  would  put  the  engine  on  the 
car.  The  car  was  placed  and  the  men  commenced  to  load  the  en- 
gine, the  agent  of  the  defendant  superintending  the  loading ;  the 
chain  broke  and  the  property  was  injured.  The  court  held  that 
"the  carrier's  liability  commenced  when  the  engine  was  deliv- 
ered to  and  accepted  by  them  for  the  purpose  of  transportation ; 
that  until  such  delivery  the  truckman,  who  was  also  a  common 
carrier,  would  be  liable;  but  after  such  delivery  and  acceptance 
the  defendant  would  be  liable  for  the  negligence  of  those  em- 
ployed by  them  to  load  or  transport  the  engine;  that  it  was  for 
the  jury  to  determine  from  the  evidence  whether  there  had  been 
such  delivery  and  acceptance,  and  in  order  to  constitute  such  de- 
livery and  acceptance  it  must  appear  that  the  defendant  had, 
through  their  agents,  taken  and  assumed  the  charge  and  custody 
of  the  engine  for  the  purpose  of  transportation. ' '  "^ 

6«  Witham  v.  Lee,  Esp.  264.  ered  and  he  has,  either  expressly 

«« 11  Allen,  80.  or  by  Implication,  received  them. 

67  The  responsibility  of  a  bailee  Rogers  v.  Stophel,  32  Pa.  St.  111. 
begins  when  the  goods  are  deliv- 


§  200.]  LOCATIO   CUSTODI^.  171 

It  will  be  seen  that  the  principle  involved  in  the  two  cases 
was  the  same.  The  railroad  company,  by  its  servants  and  agents, 
took  the  control  and  direction  of  the  property  and  the  loading  of 
it  into  their  cars;  having  thus  talien  the  control  and  possession 
of  the  property  the  bailment  liability  began  and  the  company 
was  held  liable.  It  may  therefore  be  said  that  the  liability  of 
the  bailee  commences  the  moment  he  assumes  the  control  of  the 
property  and  it  is  surrendered  to  him,  and  continues  until  the 
purpose  of  the  bailment  has  been  accomplished,  or  the  control 
is  rightfully  surrendered  to  another.  This  is  a  question  of  fact 
for  the  jury,  to  be  determined  by  the  circumstances  of  each  par- 
ticular case. 

§  200.  Proper  place  and  kind  of  storage. — The  reasonable 
diligence  required  of  the  custodian  applies  to  the  place  in  which 
he  stores  the  property,  and  the  kind  of  care  and  custody  he  gives 
to  the  property  while  in  storage.  And  here  the  rules  formerly 
stated  apply  and  are  essential  and  important  in  determining 
this  question.  We  are  to  consider  (1)  the  nature  and  value  of 
the  article;  (2)  the  customs  of  the  place  or  trade;  (3)  the  condi- 
tion of  the  country  or  climate,  and  (4)  the  condition  of  the 
times.     These  have  been  fully  discussed.^® 

A  rickety,  tumble-down  building  which  would  not  protect  from 
the  weather  nor  bear  the  weight  of  the  property  stored,  which 
would  be  liable  to  collapse  and  thus  injure  and  destroy  the  goods 
stored,  would  not  be  a  reasonably  fit  storage-house  for  furniture 
or  grain ;  ^^  nor  would  a  place  well  adapted  for  the  storing  of 

68  Ante,  §  42.  external  violence,  and  it  was  held 

69  In  an  action  to  recover  for  that  in  such  a  case  negligence  of 
an  alleged  negligent  storing  of  the  warehouse  man  will  be  pre- 
the  plaintiff's  carriage  injured  by  sumed.  The  case  was  first  dis- 
the  falling  in  of  a  roof  loaded  with  cussed  in  9  N.  Y.  App.  Div.  Rep. 
snow,  an  instruction  that  defend-  36,  where  the  facts  are  given.  In 
ants  were  bound  to  exercise  ordi-  1894  defendant,  a  warehouseman, 
nary  care,  such  as  a  prudent  man  stored  a  large  quantity  of  house- 
would  take  with  his  own  goods,  hold  goods  and  furniture  for  the 
and  were  liable  if  they  had  reason  plaintiff.  In  April,  1894,  fire  oc- 
to  know  that  the  building  was  un-  curred  causing  no  injury  to  the 
safe,  was  held  unexceptional.  plaintiff's  goods,  but  necessitating 
Moulton  V.  Phillips,  10  R.  I.  218;  repairs  to  the  building.  The  de- 
Kaiser  V.  Latimer,  57  N.  Y.  Supp.  fendant  proceeded  to  make  these 
883,  was  a  case  where  the  prop-  repairs,  which  consisted  of  the  re- 
erty  was  destroyed  by  the  col-  moval  of  burnt  timbers  and  beams 
lapse  of  the  warehouse  from  no  and     replacing    them    with    new 


172  ORDINARY  BAILMENTS.  [§   201. 

grain,  or  furniture,  or  merchandise,  be  considered  reasonably  fit 
for  depositing  valuable  gems  and  jewelry,  or  the  keeping  of 
bonds  and  securities.  Then,  too,  the  place  where  the  bank  or 
safe-deposit  or  the  warehouse  is  situated  is  an  element  to  be 
taken  into  consideration  in  determining  whether  proper  care  has 
been  exercised  in  the  custody  of  the  property.  What  might  be 
considered  reasonably  safe  in  a  small,  quiet  village  would  be 
scarcely  any  protection  in  a  large  city.  An  ordinary  iron  safe  in 
one  place  might  be  deemed  an  ordinarily  fit  protection  for  the 
special  deposits  of  the  country  bank,  while  in  the  great  city  it 
would  be  gross  negligence  to  use  the  same  kind  of  protection.  In 
the  city  not  only  the  latest  improved  deposit-vaults,  with  the 
very  best  of  locks  and  appliances  to  protect  from  the  burglar, 
but  faithful,  trusted  men  must  be  on  guard  with  all  the  neces- 
sary appliances  for  calling  to  their  aid  the  police  force  of  the 
city.  It  is  the  usual  protection  given  in  the  like  business  by  the 
persons  and  institutions  of  their  class  that  is  required. 

§  201.  Diligence  must  keep  pace  with  improvements. — 
Since  the  splendid  improvements  by  reason  of  the  discoveries  in 
electricity  have  come  to  be  known  and  used,  the  discoveries  in 
the  use  and  tempering  of  steel,  the  great  improvements  in  time- 
locks  and  alarms,  the  requirements  of  ordinary  diligence  have 

ones,  and  during  the  progress  of  court  of  appeals    (57  N.  Y.  Supp. 

the   work   the   building  collapsed,  S83),  and  the  court  there  held  that 

damaging     many     of      plaintiff's  "the  collapse  or  fall  of  a  building, 

goods.     Plaintiff  brought  suit  and  from     no     external     violence     or 

recovered  a  verdict  of  $700.    The  earthquake    or    similar    cause,    is 

question  before  the  court  was  as  almost    invariably    the    result    of 

to  the  burden  of  proof.    The  court  negligence,  either  in  the  construc- 

charged  the  jury  tuat  the  burden  tion   of   the   building  or   in    over- 

of    proof    was    on    the    defendant  loading   it.     It   is    so   exceptional 

who    had    failed    to    return    the  an  occurrence  that  it  is   difficult 

goods,  and  that  he  must,  because  to  imagine   a  case  to  which   the 

of    such    failure,    show    that    he  rule  res  ipsa  loquitur  would  more 

acted  in  regard  to  these  goods  or  forcibly   apply;"    holding,    as    we 

dealt  with  them  as  a  prudent  man  have  said,  that  the  negligence  of 

would    deal    with    his    own    prop-  the    warehouseman    will    be    pre- 

erty.     Defendant   took   an   excep-  sumed    where    the    property    was 

tion,    asked   the   court   to    charge  destroyed  by  the  collapse  from  no 

that  the  burden   of  proving  neg-  external  violence  of  the  building 

ligence  was  on  the  plaintiff,  and  in  which  he  stored  them, 
the   court   so   held   and    reversed  Somewhat    opposed    to    this    is 

the  case.     In  1899  the  same  case,  the  case   of  Willett  v.  Rich,   142 

after    retrial,     came     before    the  Mass.  3o6. 


§  202.]  LOCATIO  CUSTODI^.  173 

made  great  advances,  so  that  now  the  safe-deposit  company,  the 
trust  company  and  the  banker,  to  be  ordinarily  diligent  must  be 
equipped  with  these  and  other  improved  facilities  to  the  extent 
that  they  are  ordinarily  used  by  those  of  their  own  class. 

Hand  in  hand  with  the  great  inventions  of  the  age  go  the  de- 
mands of  the  law ;  the  diligence  of  yesterday  may  be  the  negli- 
gence of  to-day.  The  custodian  for  hire  is  bound  to  keep  pace 
with  the  advanced  requirements  and  practice  of  his  class.  If  he 
does  this  he  escapes  liability  when  loss  or  injury  comes  to  the 
property  intrusted  to  him;  if  he  fails,  he  has  failed  to  be  ordi- 
narily diligent  and  is  liable  for  the  damages  that  result  because 
of  this  failure.  Not  that  it  is  necessary,  in  order  to  escape  liabil- 
ity, to  adopt  and  use  the  very  best  and  newest  of  these  appli- 
ances and  inventions  for  the  purpose  of  securing  safety  and  pro- 
tection to  their  customers,  but  that  they  are  bound  to  use  such 
as  the  ordinarily  prudent  custodians  of  their  class  are  using; 
such  as  are  ordinarily  used  and  demanded  at  the  place  and  the 
time,  and  by  those  engaged  in  like  pursuits. 

This  question  has  been  discussed  more  or  less  in  cases  where 
it  was  alleged  that  suitable  machinery  was  not  in  use,  etc.  These 
cases  are  somewht  analogous  to  the  question  we  are  here  discuss- 
ing. In  the  case  of  Titus  v.  Railroad  Co?^  the  court  used  this 
language:  "Absolute  safety  is  unattainable  and  employers  are 
not  insurers.  They  are  liable  for  the  consequences,  not  of  dan- 
ger but  of  negligence;  and  the  unbending  test  of  negligence,  in 
method,  machinery  and  appliances,  is  the  ordinary  usage  of  the 
business. ' ' 

§  202.  Proof  of  negligence. — The  bailee  in  this  class  of  bail- 
ments, "locatio  custodi-ce/'  is  required  to  exercise  ordinary  dili- 
gence and  is  liable  for  ordinary  negligence  in  case  of  loss  or 
injury  to  the  property  bailed.''^    His  liability,  therefore,  depends 

70  136  Pa.  St.  618;  Shadford  v.  Wend.  60,  plaintiff  brought  suit  to 
Ann  Arbor  St.  Ry.  Co.,  Ill  Mich.  recover  for  a  quantity  of  salt  dam- 
390.  aged  by  flood.    The  salt  was  piled 

71  Story,  Bailm.,  sec.  144;  Bo-  upon  the  wharf  of  defendants  in 
gert  V.  Haight,  20  Barb.  251;  Buffalo;  the  agent  of  plaintiff,  in 
Myers  v.  Walker,  31  111.  353;  Rog-  December,  requested  defendants 
ers  V.  Stophel,  32  Pa.  St.  Ill;  to  put  the  salt  into  their  ware- 
Dimmick  v.  St.  Paul  R.  Co.,  18  house,  but  it  was  not  done.  In 
Wis.  494;  Blinn  v.  Mayo,  10  Vt.  January  a  storm  on  Lake  Erie, 
56-59;  Buckingham  v.  Fisher,  70  which  commenced  at  midnight, 
111.   121.     In   Knapp   v.   Curtis,    9  raised   the   water   very   suddenly, 


174 


ORDINARY  BAILMENTS. 


[§  202. 


upon  proof  of  negligence,  or,  under  certain  circumstances,  proof 
that  he  exercised  ordinary  diligence. 

The  degree  of  care  required  and  the  facts  that  generally  make 
out  a  case  of  ordinary  diligence  have  been  fully  defined  and  dis- 
cussed. As  a  general  rule  the  burden  of  proof  is  upon  the  bailor 
to  prove  that  the  bailee  was  guilty  of  negligence. 


and  the  water  flowed  over  the 
wharf  and  injured  the  lower  tiers 
of  the  salt  in  barrels.  The 
wharves  and  storehouses  of  the 
defendants  were  built  consider- 
ably higher  than  the  water  had 
ever  previous  to  this  occurrence 
been  known  to  rise,  and  the  salt 
upon  the  wharf  was  but  little  if 
any  more  exposed  to  injury  from 
the  storm  than  it  would  have 
been  had  it  been  rolled  into  the 
storehouse.  The  judge  charged 
the  jury  that  the  defendants  were 
liable  only  in  consequence  of  neg- 
lect to  use  that  care  in  the  pre- 
servation of  the  salt  that  prudent 
men  would  ordinarily  use  over 
their  own  property;  that  to  jus- 
tify a  verdict  against  them  the 
jury  must  be  satisfied  that  the  in- 
jury complained  of  was  occasioned 
by  the  neglect  of  the  defendants 
either  in  not  raising  their  wharf 
to  a  sufficient  height,  in  not  roll- 
ing the  salt  into  the  storehouse, 
or  in  not  securing  it  after  the 
commencement  of  the  storm,  etc. 
Savage,  C.  J.,  in  rendering  the 
opinion  of  the  court  said:  "The 
judge  stated  the  law  correctly  to 
the  jury  that  the  defendants,  as 
warehousemen  or  storekeepers, 
were  not  liable  if  they  had  used 
all  the  care  and  diligence  respect- 
ing the  salt  in  question  which 
prudent  men  exercise  in  relation 
to  their  own  property;  that  if 
they  had  been  guilty  of  negli- 
gence, it  must  have  consisted 
either  (1)   in  a  want  of  care  and 


prudence  in  not  raising  their 
wharf  and  storehouse  higher,  or 
(2)  in  omitting  to  put  the  salt 
in  the  storehouse,  or  (3)  in  omit- 
ting to  secure  the  salt  after  the 
storm  commenced.  That  all  these 
points  of  testimony  were  entirely 
in  favor  of  the  defendants.  First, 
that  the  storehouse  and  wharf 
were  as  high  as  any  other,  and 
the  water  had  never  risen  so  high 
as  upon  the  occasion  of  this  loss; 
second,  had  the  salt  been  in  the 
storehouse  the  damage  would 
have  been  about  the  same;  and 
third,  the  rise  was  so  sudden  that 
it  did  not  appear  that  the  salt 
could  have  been  saved."  Cin- 
cinnati &  Chicago  Air  Line  R.  Co. 
V.  McCool,  26  Ind.  140;  Lancaster 
Mill  V.  Merchants'  Cotton  Press 
Co.,  89  Tenn.  1;  Willey  v.  Alle- 
gheny City,  118  Pa.  St.  490.  While 
the  law  demands  that  the  class  of 
storage  should  be  reasonably  fit 
and  safe,  it  does  not  require  that 
the  warehouseman  shall  construct 
buildings  secure  from  all  possible 
contingencies;  if  they  are  reason- 
ably and  ordinarily  safe  against 
ordinary  and  common  occurrences 
it  is  sufficient.  Cowles  v.  Pointer, 
26  Miss.  253;  Waldon  v.  Finch,  70 
Pa.  St.  460;  Hickey  v.  Morrell,  102 
N.  Y.  454.  "Evidence  that  poul- 
try, when  put  in  cold  storage,  was 
in  good  condition;  that  there  was 
moisture  in  the  room  where  it 
was  kept;  and  that  this  would 
produce  mould,  warrants  recov- 
ery   against    the    warehouseman. 


§  203.] 


LOCATIO  CUSTODI^. 


175 


As  we  have  seen,  the  bailee  is  not  liable  for  loss  or  injury  that 
is  caused  by  (1)  the  act  of  God,  as,  for  example,  lightning, 
earthquakes,  tornadoes,  storms,  and  the  like;  or  (2)  by  the  act 
of  the  public  enemy,  as  by  capturing  and  appropriating  the 
property  and  destroying  or  converting  it;  or  (3)  by  inevitable 
accident,  as  by  fire,  burglary,  etc.,  unless  by  exercising  ordinary 
diligence  loss  by  reason  of  these  causes  could  have  been  averted. 

When,  therefore,  the  loss  or  injury  to  the  property  is  accounted 
for  by  reason  of  these  causes,  the  burden  of  showing  that  by  ex- 
ercising reasonable  care  and  diligence  the  loss  or  injury  could 
have  been  averted  is  upon  the  bailor. 

§  203.  Does  the  burden  of  proof  of  negligence  shift. — While 
the  general  rule  is  as  we  have  stated,  that  if  the  bailee  fails  to 
redeliver  the  property  when  demanded,  or  at  the  expiration  of 
the  bailment  returns  it  in  a  damaged  condition,  a  prima  facie 
case  of  negligence  is  made  out  against  him,  and  the  burden  of 
proof  is  upon  him  to  show  that  the  loss  or  injury  of  the  property 


without  proof  of  any  specific  act 
of  negligence  producing  the  mois- 
ture. Leidy  v.  Quaker  City  Cold 
Storage  &  Warehouse  Co.,  36  Atl. 
851,  180  Pa.  St.  323."  Must  exer- 
cise ordinary  diligence,  such  dili- 
gence as  faithful  warehousemen 
are  accustomed  to  give  under  like 
circumstances.  Louisville,  etc.  R. 
Co.  V.  United  States,  39  Ct.  CI. 
405;  Charlotte,  etc.  Co.  v.  Sea- 
hoard,  etc.  Ry.,  139  N.  C.  382,  51 
S.  E.  973.  Where  the  warehouse 
was  situated  near  a  river  and  the 
warehouseman  was  warned  that 
the  river  was  apt  to  overflow  its 
hanks  any  hour  and  damage  the 
goods  if  not  removed,  failure  to 
remove  the  goods  damaged  by  the 
overflow  of  the  river  rendered 
the  warehouse  keeper  liable.  Law- 
rence L.  Poina,  etc.  Co.  v.  St. 
Louis,  etc.  Co.,  112  Mo.  App.  49, 
86  S.  W.  873.  What  constitutes 
reasonable  care  held  to  depend 
on  the  nature  of  the  undertaking, 
the  confidence  which  it  invites 
and   the   value   of   the   care.    Ma- 


sonic Temple,  etc.  Co.  v.  Lang- 
felt,  117  111.  App.  652;  Denver,  etc. 
Co.  V.  Munder,  20  Colo.  App.  56, 
77  Pac.  5.  Falsely  representing 
that  the  warehouse  was  fireproof 
authorizes  a  recovery  where  goods 
destroyed  because  it  was  not  as 
represented.  Clifford  v.  Univer- 
sal Warehouse,  etc.  Co.,  102  N. 
Y.  S.  460.  In  this  case  court  dis- 
cusses what  is  ordinary  prudence. 
Hickey  v.  Morrell,  102  N.  Y.  454, 
7  N.  E.  321,  55  Am.  Rep.  824. 
Where  contract  excused  liability 
from  loss  by  fire,  held  did  not  ex- 
cuse from  exercising  ordinary 
care  to  protect  the  property  from 
fire.  Dieterle  v.  Bekin,  143  Cal. 
683,  77  Pac.  664.  And  where  re- 
ceipt for  storage  of  apples  recited 
"at  owner's  risk,"  held  warehouse- 
man not  excused  for  negligence 
by  failing  to  protect  from  un- 
usually cold  weather.  Denver, 
etc.  Co.  V.  Munger,  20  Colo.  App. 
56,  77  Pac.  5;  Rudell  v.  Grand 
Rapids,  etc.  Co.,  136  Mich.  528,  99 
N.  W.  756. 


176  ORDINARY  BAILMENTS.  [§   204, 

was  occasioned  by  some  of  the  acts  which  would  excuse  a  bailee, 
as,  for  example,  the  act  of  God,  the  public  enemy  or  inevitable 
accident.  Some  of  the  courts  have  held  that  this  would  not  be  a 
complete  defense,  but  that  the  defendant  bailee  would  be  re- 
quired to  further  show  that  he  exercised  reasonable  diligence  in 
endeavoring  to  prevent  the  loss  or  injury;  while  others  contend 
that  the  burden  of  proving  negligence  never  shifts  from  the 
plaintiff. 

In  Lynch  v.  Kluber  ^^  it  was  held  that  warehousemen  are  held 
to  the  same  degree  of  care  which  prudent  persons  usually  take  of 
their  own  property,  and  proof  that  property  was  delivered  to  a 
warehouseman  in  good  condition,  and  was  damaged  when  re- 
turned by  him,  makes  out  a  prima  facie  case  of  negligence 
against  him.  In  Parry  v.  Squire  ''^  it  was  held  that  ' '  evidence 
that  the  property  was  in  good  condition,  and  that  it  was  not  in 
such  good  condition  when  redelivered  by  him,  makes  a  prima 
facie  case  against  him." 

§  204.  The  question  summed  up  and  the  rule  settled. — The 
question  as  to  the  burden  of  proof  seems  to  be  settled  in  the 
opinion  of  the  court  in  the  case  of  Claflin  v.  Meyer,''*'  which  held 
that  where  there  is  a  failure  to  account  for  the  property  or  its 
injury,  and  a  demand  and  an  unexplained  refusal  to  deliver  is 
proven,  a  prima  facie  case  of  negligence  is  -made  out;  but  when 
the  loss  or  injury  is  accounted  for  as  having  been  occasioned  by 
some  of  the  causes  which  excuse  the  bailee  then  the  defense  is 
complete  unless  the  plaintiff  further  shows  that  the  bailee  by 
exercising  ordinary  diligence  might  have  avoided  the  loss  or  in- 
jury; that  the  burden  of  proving  negligence  never  shifts  from 
the  plaintiff.  In  that  case  the  goods  were  lost  by  a  burglary. 
The  court  say :  ' '  Upon  its  appearing  that  the  goods  were  lost  by 
a  burglary  committed  upon  the  defendants'  warehouse,  it  was 
for  the  plaintiffs  to  establish  affirmatively  that  such  burglary 
was  occasioned  or  was  not  prevented  by  reason  of  some  negli- 
gence or  omission  of  due  care  on  the  part  of  the  warehouseman. 

' '  The  cases  agree  that  where  a  bailee  of  goods,  although  liable 
to  their  owner  for  their  loss  only  in  case  of  negligence,  fails, 
nevertheless,  upon  their  being  demanded,  to  deliver  them  or  ac- 
count for  such  non-delivery,  or,  to  use  the  language  of  Suther- 

T2  46   N.  Y.   Supp.   428.  73  79   m.   App.   324.  74  75  N.  Y.  262. 


§   204.]  LOCATIO   CUSTODI^.  177 

land,  J.,  in  Schmidt  v.  Blood,''^  where  there  is  a  total  default  in 
delivering  or  accounting  for  the  goods,  this  is  to  be  treated  as 
prima  facie  evidence  of  negligence.  This  rule  proceeds  either 
from  the  assumed  necessity  of  the  case,  it  being  presumed  that 
the  bailee  has  exclusive  knowledge  of  the  facts  and  that  he  is 
able  to  give  the  reason  for  his  non-delivery,  if  any  exist,  other 
than  his  own  act  or  fault,  or  from  a  presumption  that  he  actually 
retains  the  goods  and  by  his  refusal  converts  them. 

' '  But  where  the  refusal  to  deliver  is  explained  by  the  fact  ap- 
pearing that  the  goods  have  been  lost,  either  destroyed  by  fire  or 
stolen  by  thieves,  and  the  bailee  is  therefore  unable  to  deliver 
them,  there  is  no  prima  facie  evidence  of  his  want  of  care,  and 
the  court  will  not  assume,  in  the  absence  of  proof  on  the  point, 
that  such  fire  or  theft  was  the  result  of  his  negligence.  Grover, 
J.,  in  Lamb  v.  Camden  <&  Amhoy  B.  Co.,''^  says,  in  delivering  the 
opinion  of  the  court,  the  question  is  'whether  the  defendant  was 
bound  to  go  further  (i.  e.,  than  showing  the  loss  by  fire)  and 
show  that  it  and  its  employees  were  free  from  negligence  in  the 
origin  and  progress  of  the  fire,  or  whether  it  was  incumbent  upon 
the  plaintiffs,  to  maintain  the  action,  to  prove  that  the  fire  caus- 
ing the  loss  resulted  from  such  negligence.'  And  he  proceeds  to 
show  that  the  charge  of  the  judge  who  tried  the  cause  gave  to  the 
jury  the  former  instruction  and  that  this  was  contrary  to  the  law 
and  erroneous.  So  Sutherland,  J.,  in  9  Wend,  {supra),  in  the 
case  of  a  warehouseman,  says:  The  onus  of  showing  the  negli- 
gence 'seems  to  be  upon  the  plaintiff  unless  there  is  a  total  de- 
fault in  delivery  or  accounting  for  the  goods.'  And  he  cites  a 
note  of  Judge  Cowen  to  his  report  of  Piatt  v.  Hihhard,'''^  in  which 
that  very  learned  author  says,  criticising  and  questioning  a 
charge  of  the  circuit  judge,  'the  distinction  would  seem  to  be 
that  when  there  is  a  total  default  to  deliver  the  goods  bailed  on 
demand,  the  onus  of  accounting  for  the  default  lies  with  the 
bailee ;  otherwise  he  shall  be  deemed  to  have  converted  the  goods 
to  his  own  use  and  trover  will  lie ;  ^^  but  when  he  has  shown  a 
loss,  or  where  the  goods  are  injured,  the  law  will  not  intend  neg- 
ligence.   The  onus  is  then  shifted  upon  the  plaintiff. 

"It  will  be  seen,  as  the  result  of  these  authorities,  that  the 

759  Wend,  268.  777  Cow.  500. 

76  46  N.  Y.  271.  78  Anonymous,  2  Salk.  655. 

13 


178  ORDINARY  BAILMENTS.  [§   204. 

burden  is  ordinarily  upon  the  plaintiff  alleging  negligence  to 
prove  it  against  a  warehouseman  who  accounts  for  his  failure  to 
deliver  by  showing  a  destruction  or  loss  from  fire  or  theft.  It  is 
not  of  course  intended  to  hold  that  a  warehouseman,  refusing  to 
deliver  goods,  can  impose  any  necessity  of  proof  upon  the  owner 
by  merely  alleging  as  an  excuse  that  they  have  been  stolen  or 
burned.  These  facts  must  appear  or  be  proved  with  reasonable 
certainty.  Nor  do  we  concur  in  the  view  that  there  is  in  these 
cases  any  real  'shifting'  of  the  burden  of  proof.  The  ware- 
houseman in  the  absence  of  bad  faith  is  only  liable  for  negli- 
gence. The  plaintiff  must  in  all  cases,  suing  him  for  the  loss 
of  goods,  allege  negligence  and  prove  negligence.  This  burden 
is  never  shifted  from  him.  If  he  proves  the  demand  upon  the 
warehouseman,  and  his  refusal  to  deliver,  these  facts  unexplained 
are  treated  by  the  courts  as  prima  facie  evidence  of  negligence; 
but  if,  either  in  the  course  of  his  proof  or  that  of  the  defendant, 
it  appears  that  the  goods  have  been  lost  by  theft,  the  evidence 
must  show  that  the  loss  arose  from  the  negligence  of  the  ware- 
houseman. 

"Applying  these  principles  to  the  present  case,  we  must  hold 
that  when  it  appeared,  as  it  did,  that  the  goods  were  taken  from 
the  defendant's  warehouse  by  a  burglarious  entry  thereof,  the 
plaintiffs  should  have  shown  that  some  negligence  or  want  of 
care,  such  as  a  prudent  man  would  take  under  similar  circum- 
stances of  his  own  property,  caused  or  permitted  or  contributed 
to  cause  or  permit  that  burglary. ' '  ^* 

"9  Claflin  V.  Meyer,  75  N.  Y.  262;  stroying  cause.  McLaughlin  v. 
Fairfax  v.  Railway  Co.,  67  N.  Y.  New  York  Lighterage  Co.,  27  N.  Y. 
11;  Steers  v.  Liverpool  Steamship  S.  248;  Hunter  v.  Ricke  Bros.,  127 
Co.,  57  N.  Y.  1;  Burnell  v.  Rail-  Iowa,  108,  102  N.  W.  826;  Shrop- 
way  Co.,  45  N.  Y.  184;  Knight  v.  shire  v.  Sidebottom,  30  Mont.  406, 
Piella,  111  Mich.  9.  If  property  is  76  Pac.  941;  Powers  v.  Jughardt, 
lost,  or  returned  in  an  injured  91  N.  Y.  S.  556;  Simonoff  v.  Fox, 
condition,  the  burden  of  proof  is  91  N.  Y.  S.  757;  Jackson  v.  Mo- 
on bailee  to  overcome  the  pre-  Nonald,  70  N.  J.  594,  57  Atl.  126. 
sumption  of  negligence;  but  if  he  But  see  Winteringham  v.  Hayes, 
shows  It  was  occasioned  by  opera-  144  N.  Y.  1,  38  N.  E.  999;  Selesky 
tion  of  forces  not  within  his  con-  v.  Vallmer,  95  N.  Y.  S.  130.  In 
trol,  the  case  is  at  an  end,  unless  Willett  v.  Rich,  142  Mass.  356, 
the  bailor  either  disproves  the  held  burden  of  proof  does  not 
asserted  causes  of  loss  or  injury  shift.  And  it  was  held  not  neces- 
or  shows  that  want  of  ordinary  sary  in  order  to  recover  against 
care    co-operated    with    such    de-  a  cold  storage  company,  for  dam- 


§  205.]  LOCATIO  CUSTODI^.  179 

§  205.  Contributory  negligence. — While  it  is  true  that  the 
bailee  must  answer  for  his  ordinary  negligence,  and  that  it  ex- 
tends to  requiring  him  to  use  ordinary  diligence  in  avoiding  loss 
or  injury  of  the  property  by  any  of  the  causes  that  excuse  loss  or 
injury,  there  is  in  all  such  cases  certain  duties  resting  upon  the 
bailor. 

Contributory  negligence  as  a  defense  is  applicable  to  cases  of 
bailments,  and  whenever  it  can  be  shown  that  the  bailor  himself 
contributes  to  the  negligence  that  occasioned  the  loss  or  injury, 
he  cannot  recover  in  an  action  against  the  bailee.  In  Parker  v. 
Union  Ice  &  Salt  Co.,^^  it  was  held  "that  damages  are  not  recov- 
erable from  a  warehouseman,  a  bailee  for  hire,  because  of  injury 
to  goods  stored  through  the  unfitness  of  the  warehouse  as  a  place 
of  storage,  where  the  bailor  has  equal  opportunities  with  the 
bailee  of  knowing  whether  his  goods  are  liable  to  injury  by  stor- 
age in  an  unsuitable  place.  The  court  say:  'From  the  above 
facts  the  court  concluded'  (the  court  below),  'as  a  matter  of  law, 
that,  the  parties  being  equally  negligent,  no  recovery  could  be 
had.'  The  conclusion  of  the  court  was  sound.  The  ordinary 
rules  of  liability  for  negligence  and  contributory  negligence  ob- 
tain in  cases  of  bailment  such  as  the  one  in  question.  A  bailor 
who  knows  the  unfitness  of  the  place  of  storage  of  goods  provided 
by  his  bailee,  or  who  has  equal  opportunities  with  the  bailee  of 
knowing  it,  who  sees  and  inspects  the  place  of  storage,  and  who — 
there  being  no  latent  defects  in  it — passes  judgment  upon  it  as  a 
fit  place  for  his  purposes,  will  be  deemed  equally  at  fault  with 
the  bailee  if  damage  result  to  his  goods. ' '  The  principle  has  been 
generally  recognized  as  applying  to  cases  of  liability  of  a  bailee.^^ 

ages  to  goods,  to  prove  more  than  260,  54  L.  R.  A.  774.  Goods  re- 
that  the  goods  when  delivered  for  ceived  in  good  condition  returned 
storage  were  according  to  the  damaged  prima  facie  evidence  of 
usual  test  of  commerce  sound.  negligence.  Holt,  etc.  Co.  v.  Ar- 
Marks  v.  New  Orleans,  etc.  Co.,  thur  Jordon  Co.,  25  Ind.  App.  314, 
107  La.  172,  57  L.  R.  A.  271.  And  57  N.  E.  575.  See  cases  cited  in 
where  an  action  was  brought  notes  to  Sulpho,  etc.  Co.  v.  Allen, 
against  a  warehouseman  for  loss  1  Am.  &  Eng.  Ann.  Cas.  23. 
of  liquor  stored,  the  bailee  showed  so  59  Kan.  626,  54  Pac.  672. 
that  the  loss  occurred  by  leakage,  si  Defendant's  customer,  with- 
held that  the  burden  of  proof  of  out  his  request  or  notice  to  him, 
negligence  of  the  bailee  in  the  placed  her  jacket  over  her  purse 
matter  was  on  the  bailor.  Tans-  on  a  table  in  a  fitting-room  in  his 
sig  V.   Bode   &   Haslett,   134   Cal.  tailoring  establishment,  and  then 


180  ORDINARY  BAILMENTS.  [§   206 

In  the  case  of  Schnips  v.  Strum,^-  defendant  kept  a  bath  tank 
and  charged  five  cents  for  a  bath ;  he  supplied  no  lockers,  and  his 
patrons  deposited  their  clothing  on  a  bench  near  the  tank.  When 
requested  he  would  receive  from  his  customers  such  articles  as 
they  wished  particular  care  taken  of.  While  plaintiff",  who  was 
a  regular  customer,  was  bathing,  a  watch,  a  diamond  ring  and 
$55  were  stolen  from  his  clothes  on  the  bench.  He  had  not 
availed  himself  of  the  privilege  of  depositing  these  valuable  ar- 
ticles with  the  proprietor.  The  court  say:  ''The  defendant's 
duty  was  measured  by  what  he  undertook  to  do.  The  accommo- 
dations he  afforded  and  the  extent  of  protection  which  he  gave 
were  all  known  to  those  who  frequented  his  place,  and  in  accept- 
ing what  was  offered  they  must  be  deemed  to  have  been  satisfied 
with  it.  It  was  that  and  that  alone  which  they  paid  for,  and  the 
measure  of  the  defendant's  obligation  to  them  was  the  careful 
observance  of  that  which  the  facts  show  he  assumed  to  perform. ' ' 
.  .  .  "We  think  also  that  the  plaintiff  was  guilty  of  contribu- 
tory negligence  in  placing  his  valuables  in  such  an  exposed  place, 
and  in  not  depositing  them  with  the  defendant  for  safe  keeping 
as  he  had  previously  done."  .  .  .  "Having  failed  to  avail 
himself  of  a  means  of  protection  afforded  by  the  defendant, 
which  ordinary  prudence  required  him  to  adopt,  he  was  himself 
guilty  of  negligence  which  in  itself  was  sufficient  to  bar  a  re- 
covery. ' '  ^' 

§  206.  Negligence  of  servants. — The  general  rule,  making 
the  master  liable  for  the  acts  of  servants  while  acting  within  the 
scope  of  their  employment,  obtains  here,  and  for  the  same  rea- 
son. The  right  of  selection  is  the  foundation  of  the  rule.  The 
master  has  the  right  to  choose  his  servants,  and  must  choose  those 
upon  whom  he  may  depend.  If  the  master  has  not  the  right  to 
choose,  he  may  not  be  held  responsible  for  the  servant's  acts; 
and,  indeed,  the  relation  of  master  and  servant  cannot  be  said  to 

left  the  room  until  notified  to  re-  or  depositary,  but  the  place  where 

turn   by   his   forewoman.     In   the  and  the  manner  in  which  the  goods 

meantime    the    purse    was   stolen.  deposited  are  to  be  kept  by  him  he 

Held,    that   the    customer's    negli-  must  be  presumed  to  assent  in  ad- 

gence  precluded  a  recovery.     Mc-  vance  that  his  goods  shall  be  thus 

Allister  v.  Simon,  57  N.  Y.  S.  733.  treated;    and   if   under   such    cir- 

82  54  N.  Y.  Supp.  140.  cumstances  they  are  damaged  or 

83  "When  the  bailor,  or  depos-  lost,  it  is  by  reason  of  his  own 
itor,  not  only  knows  the  general  fault  or  folly."  Knowles  v.  At- 
character  and  habits  of  the  bailee  lantic  &  St.  L.  R.  Co.,  38  Me.  55. 


§  208.]  LOCATIO  CUSTODI^.  181 

exist  if  the  right  of  choice  does  not  exist.^*  But  the  relation  of 
master  and  servant  existing,  it  follows  that  the  master  is  liable 
for  the  negligence  of  the  servant  while  acting  within  the  scope 
of  the  employment,  and  for  the  reasons  above  stated. 

This  rule  applies  to  corporations  as  well  as  individuals.^^  It 
therefore  follows  that  the  custodian  bailee  is  liable  for  the  acts 
and  for  the  negligence  of  his  servants.  The  warehouseman,  the 
elevator  man,  the  safe-deposit  company,  the  common  carrier,  the 
wharfinger,  the  storage  company  and  all  those  engaged  in  the 
business  of  caring  for  the  property  and  giving  custody  for  hire, 
are  subject  to  this  rule  of  law. 

§  207.  Unauthorized  use  of  chattels. — This  subject  has  been 
quite  sufficiently  discussed  under  another  head.^'^  It  may  re- 
main, however,  to  be  said  that  the  rule  applies  to  custody  bail- 
ments the  same  as  to  any  other  class  of  bailments.  The  bailee 
has  no  right  to  use  the  property  that  is  placed  in  his  care  and 
custody  for  keeping;  or  to  use  it  in  any  way  not  consistent  with 
the  bailment  relation;  and  should  he  at  any  time  be  guilty  of 
using  the  chattels  for  his  own  benefit,  and  in  violation  of  the 
bailment  relation,  it  would  terminate  the  bailment. 

§  208.  Delivery,  misdelivery,  non-delivery. — The  bailee  who 
for  hire  has  the  chattels  for  safe  keeping  in  his  custody  must, 
at  the  termination  of  the  bailment,  return  the  goods;  it  may  be 
that  the  bailment  contract,  by  express  stipulation  or  by  implica- 
tion, does  not  provide  or  contemplate  the  return  of  the  specific 
articles  bailed,  as  in  case  of  wheat  stored  with  the  elevator-man 
with  the  implied  understanding  that  the  particular  wheat  will 
be  stored  in  large  bins  with  other  wheat,  and  that  the  bailment 
will  be  fully  answered  as  to  all  its  requirements  by  returning 
other  wheat  of  the  same  kind,  quality  and  quantity;  or  where 
wheat  is  stored  with  the  miller  to  be  returned  in  flour  as  called 

84Hexamer  v.  Webb,  101  N.  Y.  Co.,  66  N.  Y.  181;  Kimball  v.  Cush- 

377,  held:    "In  order  to  establish  man,   103   Mass.   194;    Pickens   v. 

the  liability  of  one  person  for  an  Diecker,    21    Ohio    St.    212;    Mer- 

injury   caused   by   the   negligence  chants'   Nat.   Bank  v.   State   Nat. 

of   another,   it   is   not   enough   to  Bank,  10  Wall.  (U.  S.)  604. 

show  that  the  latter  was   at  the  «5  Frankfort   Bank   v.    Johnson, 

time  acting  under  employment  by  24  Me.    490;    Muster   v.    Chicago, 

the  former;   it  must  be  shown  in  M.  &.  St.  P.  Ry.  Co.,  61  Wis.  325; 

addition  that  the  employment  ere-  Kimball    v.    Cushman,    103   Mass. 

ated   the   relation   of  master  and  194. 

servant."     King  v.   N.  Y.  etc.  R.  s^  Ante,  §  46. 


182  ORDINARY  BAILMENTS.  [§   210. 

for.  But  in  every  case  of  this  class  of  bailments,  redelivery  in 
some  form  is  contemplated,  and  it  is  the  duty  of  the  bailee  to  see 
that  there  is  such  a  redelivery  as  the  bailment  contract  requires. 
Nor  can  he  dispute  the  bailor's  title  except  at  his  own  risk,  or 
require  of  him,  before  redelivery,  proof  of  the  property  bailed.^'^ 

Not  only  is  the  bailee  required  to  deliver  the  goods  he  has  had 
in  his  custody  to  the  bailor  at  the  termination  of  the  bailment, 
but  for  a  misdelivery,  Avhether  by  mistake  or  negligence,  he  will 
be  liable  in  trover;  for  mistake  or  negligence  in  the  perform- 
ance of  this  duty  which  renders  it  impossible  for  him  to  deliver 
the  property,  he  will  be  held  accountable  the  same  as  though  he 
had  converted  the  property  to  his  own  use.^^  He  will  be  held 
to  know  who  his  bailor  is,  and  can  have  no  legal  reason  for  mak- 
ing a  mistake  in  delivery, 

§  209.  Confusion  of  goods. — As  has  been  seen,  the  contract 
of  bailment,  often  by  express  terms  or  by  implication,  provides 
that  the  chattel  bailed,  as  wheat  or  corn,  may  be  mixed  with 
other  property  of  the  same  kind  and  quality,  and  that  the  bail- 
ment can  be  satisfied  by  a  redelivery  of  the  same  quality  from 
the  common  mass.  The  obligation  is,  however,  always  upon  the 
bailee,  unless  acting  by  the  direction  of  the  bailor,  to  see  to  it 
that  the  objects  and  contract  restrictions  of  the  bailment  are 
fully  adhered  to,  and  if  he  fails  in  this  he  becomes  liable. 

§  210.  Criminal  liability. — The  bailee  in  this  class  of  bail- 
ments holds  the  property  for  no  other  purpose  than  to  care  for 
it  during  the  continuance  of  the  relation  in  accordance  with 
the  contract,  and  redeliver  it  to  the  bailor  upon  the  termination 
of  the  relation.  He  has  no  title  to  the  property  except  that 
possessory  interest  given  him  as  bailee,  and  his  right  to  the  pos- 
session ceases  whenever  he  is  guilty  of  fraud  or  bad  faith,  or 
any  misuse  of  the  property.  The  relation  is  such  that  should 
the  bailee,  with  intent  to  deprive  the  bailor  of  his  property,  and 
without  his  consent,  convert  the  same  to  his  own  use,  he  would 
be  guilty  of  embezzlement. 

Embezzlement  is  said  to  be  a  species  of  larceny,  and  the  term 
is  applicable  to  cases  of  stealing  by  agents,  clerks,  or  carriers,  of 
property  coming  into  their  possession  by  virtue  of  their  employ- 
ment.^® 

STMcCafferty  v.  Brady   (Pa.),  9  v.  Doyle,  91  N.  Y.  32;    Collins  v. 

All.  37.  Burns,  63  N.  Y.  1. 

8s  Lichtenheim  v.  Boston  P.  R.  so  Sykes  v.  The  People,  127  111. 

Co.,  11  Cush.  70;  Bank  of  Oswego  117. 


§   210.]  LOCATIO   CUSTODI^.  183 

It  will  not  be  necessary  to  discuss  in  extenso  this  question, 
as  it  belongs  more  properly  to  a  treatise  on  criminal  law.  In 
many  of  the  states,  however,  special  statutes  have  been  en- 
acted relating  to  warehousemen  and  like  bailees.  These  stat- 
utes are  somewhat  sweeping  in  their  provisions,  generally  re- 
quiring the  issuing  of  a  receipt  for  the  property  stored  to  the 
bailor,  which  must  bear  the  date  of  its  issuance,  must  state 
from  whom,  and  the  amount  received,  condition,  quality,  etc., 
and  the  terms  and  conditions  of  the  bailment;  that  no  receipt 
shall  be  issued  for  property  not  actually  stored;  that  no  per- 
son operating  any  warehouse  shall  sell,  incumber,  ship,  trans- 
fer, or  in  any  manner  remove,  or  permit  to  be  shipped,  trans- 
ferred, or  removed  beyond  his  custody  and  control,  any  grain, 
etc.,  for  which  a  receipt  has  been  given  by  him,  whether  re- 
ceived for  storage,  shipping,  grinding,  manufacturing,  or  other 
purposes,  without  the  written  assent  of  the  holder  of  the  re- 
ceipt, and  providing  punishment  for  any  violation  of  these  pro- 
visions. In  Sykes  v.  People,^^  the  Illinois  court  discussed  a 
similar  statute.  The  court  say:  "It  cannot  be  doubted  that 
commercial  transactions  are  greatly  facilitated  by  this  transfer 
of  property,  and  the  purpose  of  the  act  was  to  protect  the 
holders  of  such  public  warehouse  receipts  from  imposition  and 
fraud.  The  receipts  are  required  to  be  the  true  representatives 
of  property  actually  in  store  in  the  warehouse,  and  their  issu- 
ance is  prohibited  under  any  other  conditions  or  circumstances. 
If  the  bank,  in  this  case,  as  it  might,  had  put  these  warehouse 
receipts  in  circulation,  an  actual  fraud  would  have  been  com- 
mitted, and  the  evil  intended  to  be  prevented  by  the  statute 
consummated.  By  the  issuance  of  the  receipts  to  the  bank,  it 
was  furnished  with  the  means  of  perpetrating  a  fraud,  and  this 
is  one  of  the  objects  this  statute  sought  to  prevent.  Any  other 
construction  would  open  the  door  to  unlimited  fraud,  and  ren- 
der nugatory  the  protection  attempted  to  be  afforded  to  trans- 
actions through  the  public  warehouses  of  the  state  by  the 
statute. 

"It  follows  that,  as  touching  the  question  of  the  guilt  or  in- 
nocence of  the  defendent,  the  intent  with  which  the  receipts 
were  issued  by  him  was  immaterial.     The  intent  necessary  to 

60  127  111.  117;  McCutcheon  v.  People,  69  111.  601;  State  v.  Morse,  52 
Iowa,  509. 


184  ORDINARY  BAILMENTS.  [§   211. 

be  found,  to  constitute  this  offense,  related  alone  to  whether 
defendant  intended  to  issue  the  receipt  knowing  it  to  be  false. 
Thus  far  the  common-law  doctrine,  that  every  criminal  offense 
consists  of  the  joint  operation  of  act  and  intent,  enters  into  and 
must  be  considered  as  applying  to  statutory  offenses.  ^^ 

"If  such  receipts  were  issued  by  the  defendant,  he  knowing 
that  the  property  therein  represented  was  not  in  fact  in  store 
as  therein  designated  and  described,  the  crime  created  by  this 
section  of  the  statute,  as  it  relates  to  the  issuance  of  such  re- 
ceipts, was  committed.  As  before  stated,  it  is  imanaterial 
whether  the  defendant  intended  a  fraud  upon  the  bank  or 
other  persons,  if  in  fact  his  act  knowingly  committed  was 
within  the  prohibition  of  the  statute." 

§  211.  Termination. — The  letting  of  custody  for  hire  being 
the  object  of  this  class  of  bailments,  it  will  be  seen  that  the 
relation  can  be  terminated  at  the  will  of  the  bailor,  and  by 
paying  for  the  custody.  So  the  bailee  must  at  all  times  upon 
reasonable  demand  and  notice  be  ready  to  deliver  the  property, 
for  the  purpose  of  the  bailment  has  then  been  accomplished. 

The  relation  may  also  be  terminated  in  the  several  ways  that 
have  already  been  discussed,  as  (a)  by  operation  of  law,  as 
where  the  bailee  becomes  the  owner  of  the  property,  by  death  of 
the  parties,  unless  it  be  of  such  a  nature  that  the  personal 
representatives  can  carry  out  the  bailment;  (6)  by  loss  or  de- 
struction of  the  property,  when  there  could  no  longer  be  any 

91  Bishop's  statutory  Crimes,  holder  of  the  voucher.  It  is  clear 
351-361;  Gardner  v.  People,  62  N.  that  Petrie  (such  holder),  in  this 
Y.  299;  Halsted  v.  State,  41  N.  J.  case,  with  the  receipt  in  his  pos- 
L.  552.  The  supreme  court  of  session,  might  perpetrate  a  fraud 
Iowa,  in  State  v.  Stevenson,  52  upon  third  parties,  the  grain  not 
Iowa,  701,  held  that  where  a  ware-  being  stored  with  the  defendant 
houseman  shipped  grain  out  of  his  as  stated  in  the  receipt.  The  de- 
control, for  which  he  had  given  a  fendant  could  not  innocently, 
receipt,  leaving  the  receipt  out-  under  the  statute,  with  such  a  re- 
standing,  he  was  criminally  liable  ceipt  outstanding,  ship  the  wheat 
under  a  similar  statute,  although  beyond  his  control,  even  in  the 
the  grain  was  so  shipped  with  the  presence  of  Petrie  and  with  his 
knowledge  and  without  objection  verbal  assent.  Such  an  act  would 
by  the  holder  of  the  receipt.  The  furnish  Petrie  the  means  of  per- 
court  said:  "It  is  evident  from  petrating  a  fraud,  which  it  is  one 
this  whole  section  that  it  Is  for  of  the  objects  of  the  statute  to 
the  protection  of  the  community  prevent." 
as  well  as  the  protection  of  the 


§   214.]  LOCATIO  CUSTODI^.  185 

subject  of  the  bailment;  (c)  by  mutual  consent;  and  {d)  by  the 
wrongful  acts  of  the  bailee,  as  by  misuse  of  the  property  or 
neglect  to  give  it  proper  care.  ^^ 

§  212.  Conversion. — It  is  not  necessary  to  again  discuss 
the  question  of  conversion,  it  having  already  been  sufficiently 
treated."-^ 

§  213.  Compensation — Lien. — This  bailment  is  one  of  the  hir- 
ing bailments,  and  the  bailee,  for  the  custody  and  care  be- 
stowed, is  entitled  to  compensation.  This  compensation  is 
usually  fixed  by  the  contract,  from  usage  and  custom  well  under- 
stood, or  by  the  reasonable  charges  of  the  bailee.  For  the 
payment  of  this  compensation  the  bailee  has  a  common-law  lien 
upon  the  subject  of  the  bailment.''*  This  lien  is  a  special  lien 
and  not  a  general  one ;  a  lien  upon  the  goods  or  property  that  he 
has  cared  for — that  have  been  and  are  within  his  control. 

The  general  principles  governing  this  lien  have  been  so  fully 
stated  that  we  will  not  again  discuss  them. 

§  214.  Actions  against  the  warehouseman. — The  duties  and 
obligations  of  the  warehouseman  are  well  defined,  as  is  also  the 
ordinary  diligence  that  it  is  incumbent  upon  him  as  a  mutual 
benefit  bailee  to  exercise.  By  implied  contract  he  undertakes 
to  receive  the  chattels  or  property  for  custody  and  in  caring  for 
it  to  exercise  that  degree  of  care  which  other  persons  engaged 
in  a  similar  business  in  the  same  vicinity  are  in  the  habit  of 
exercising  in  caring  for  the  same  kind  of  property  similarly 
situated.^^ 

82  In  Cobb  V.  Wallace,  5  Cold.  109  111.  App.  631;  Ceroid  v.  Guttle, 
(Tenn.)  539,  the  court  held  that  106  111.  App.  630;  Kaufman  v. 
the  bailee  is  bound  to  return  the  Leonard,  139  Mich.  104,  102  N.  W. 
property  upon  reasonable  notice.  632.  May  hold  property  till  com- 
Bailey  v.  Colby,  34  N.  H.  29.  That  pensation  paid.  Reidenbach  v. 
sale  by  bailee  terminates.  Dun-  Tuck,  88  N.  Y.  S.  366.  Under  New 
lap  V.  Gleason,  16  Mich.  158;  York  statute  held  keeper  of  a 
Negus  V.  Simpson,  99  Mass.  388;  garage  had  no  lien  on  an  auto- 
Morse  V.  Crawford,  17  Vt.  499.  mobile  which  owner  used  at  his 
Property  removed  by  operation  of  pleasure.  Smith  v.  O'Brien,  94 
law.  Wheeler  &  Wilson,  etc.  Co.  N.  Y.  S.  673,  46  Misc.  Rep.  325. 
V.  Brookfield,  70  N.  J.  703,  58  Atl.  95  Cass  v.  Boston,  etc.  R.  Co., 
352;  Cornell  v.  Mahoney,  190  14  Allen  (Mass.),  448.  Such  dili- 
Mass.  265,  76  N.  E.  664.  gence   as   faithful   warehousemen 

93  Ante,  §  63.  are  accustomed  to  give  in  like  cir- 

94  Warehousemen  have  a  com-  cumstances.  Louisville,  etc.  R. 
mon-law  lien  on  the  goods  stored  Co.  v.  United  States,  39  Ct.  CI. 
with    them.      Reefe    v.    Brackett,  405;    Charlotte,    etc.    Co.    v.    Sea- 


186  ORDINARY  BAILMENTS.  [§   214. 

Failure   to   faithfully   exercise   his    duty   in   respect   to   the 
property  will  subject  him  to  an  action.     The  actions  that  may 
be  brought  for  deriliction  of  duty  are  numerous  as  is  apparent 
from  our  former  discussion  but  whatever  the  action  and  upon 
whatever  ground  it  rests  the  important  question  decisive  of  the 
right  to  recover  generally  rests  upon  the  diligence  or  negligence 
of  the  warehouseman,  and  as  has  been  shown  where  the  goods 
are  not  redelivered  but  are  lost  or  are  returned  in  a  damaged 
condition,  the  burden  of  accounting  for  the  loss  or  damage  is 
upon  the  warehouseman  and  this  involves  the  showing  that  he 
was  not  negligent  but  diligent  to  the  degree  required  of  him. 
If  the  damage  or  destruction  resulted  without  his  fault  and 
was  occasioned  by  the  act  of  God  or  the  public  enemy  there  is 
no  difficulty,  but  if  from  robbery  or  other  causes  it  is  some- 
times difficult  to  prove  that  he  was  negligent  for  often  it  is 
hardly  enough  to  leave  the  case  to  a  jury  on  proof  of  the  fact 
alone  of  what  was  done  by  way  of  protecting  the  property,  but 
further  proof  must  be  made,  for  the  additional  question  involved 
is,  did  the  warehouseman  exercise  the  degree  of  care  which  others 
engaged  in  the  same  or  similar  business  in  the  vicinity  usually 
bestow  on  such  like  property.     In  Cass  v.  Boston,  etc.,  B.  Co.^^ 
this  question  was  involved.     After  stating  what  might  consti- 
tute a  defense,  the  court  say:  "What  constitutes  such  care  was 
a  question  of  fact  to  be  judged  of  with  reference  to  all  the  cir- 
cumstances, and  especially  with  reference  to  the  degree  of  care 
which  other  persons  engaged  in  similar  business  in  the  vicinity, 
were  in  the  habit  of  bestowing  on  property  similarly  situated. 
.     .     .     The  defendant  offered  to  prove  that  there  was  exercised 
by  it  in  relation  to  this  property,  that  care  which  other  railroad 
corporations  in  Boston  (the  place  of  the  accident)  usually  exer- 
cised in  relation  to  such  property."     This  was  held  proper  proof. 
But  it  has  been  held  that  this  kind  of  proof  must  relate  to  a  class 
rather   than    to    an   individual    person    or   corporation.     What 
would  be  considered  in  such  cases  by  the  general  class  of  ware- 
housemen to  be  diligence  or  negligence.^'' 

board,  etc.  Ry.,  139  N.  C.  382,  51  s^  First   Nat.    Bank   v.    Graham, 

S.  E.  973;  Denver,  etc.  Co.  v.  Mun-  79    Pa.    St.    106,   21   Am.   Rep.   49, 

ger,  20  Colo.  App.  56,  77  Pac.  5.  where  it  was  said:  "But  the  ques- 

9«  14   Allen    (Mass.),   448;    Lich-  tion  of  the  bailee's  responsibility 

tenstein  v.  Jarvis,  1G4  N.  Y.  601,  must  be  finally  settled  by  a  resort 

59  N.  E.  125.  to    the    settled     principle     which 


§  214.]  LOCATIO  CUSTODI^.  187 

The  general  rule  governing  liability  of  the  master  for  negli- 
gence of  his  servants  applies  in  actions  against  warehousemen 
where  the  negligence  of  his  servants  occasioned  the  loss  or  in- 
jury for  which  the  action  is  brought. 

In  Aldrich  v.  Boston,  etc.,  Co.^^  the  court  say:  "The  legal 
obligation  of  the  defendants  as  warehousemen  is  well  settled. 
.  .  .  They  were  not  chargeable  with  the  negligence  of  any 
of  their  servants  unless  it  was  negligence  within  the  scope  of 
the  servants'  employment,  and  a  true  test  of  this  liability 
may  be  found  in  the  question  whether  any  one  of  the  de- 
fendant's servants  who  were  present  at  the  fire  would  be  an- 
swerable to  his  employers  for  a  neglect  of  his  duty."  The  ac- 
tion against  the  warehouseman  may  also  arise  because  of  his 
failure  to  observe  the  contract  of  storage,  as  to  the  place  or 
kind  of  building  the  goods  were  to  be  stored  in.  If  there  was 
no  knowledge  or  consent  on  the  part  of  the  bailor  as  to  the 
place  of  storage,  the  warehouseman  would  be  bound  to  ordinary 
diligence  in  furnishing  a  fit  place.^^  If  stored  in  a  different 
place  than  stipulated  for  in  the  contract  or  impliedly  agreed 
upon,  proof  of  this  and  that  the  goods  were  destroyed  would 
render  the  warehouseman  liable,  and  it  would  be  no  defense 
that  the  destruction  or  loss  was  occasioned  by  the  act  of  God, 
the  public  enemy  or  inevitable  accident,  without  his  fault.  As 
tending  to  show  an  understanding  or  an  implied  agreement  to 
store  the  property  in  a  particular  place,  the  advertisements,  re- 
ceipts or  declarations  of  the  warehouseman  may  be  introduced 
in  evidence.*^^^ 

deduces  the  measure  of  his  duty  and  cases  cited;  Rettner  v.  Min- 
in  each  particular  bailment,  from  nesota,  etc.  Co.,  88  Minn.  352,  354, 
a  comparison  of  his  conduct  with  93  N.  W.  120.  Evidence  as  show- 
the  conduct,  not  of  individuals,  ing  stored  at  different  place.  Ken- 
but  of  classes  of  men."  nedy  v.  Putman,  97  Mo.  App.  253, 

98  100  Mass.  31,  32,  1  Am.  Rep.  70  S.  W.  1099.    In  Toplitz  v.  Tim- 

76.  mins,  88  N.  Y.  S.  946,  in  an  action 

89  Putting  prunes  in  bins  where  against  a  warehouseman  for  fail- 
other  fruit  was  in  bad  condition  ure  to  redeliver  goods  it  was  held 
held  to  be  negligence.  Arnold  v.  that  a  showing  of  the  agreement 
Producers'  Fruit  Co.,  128  Cal.  637  for  storage  and  the  delivery  of 
61  Pac.  283;  Rudell  v.  Grand  Rap-  the  goods  and  evidence  showing 
ids,  etc.  Co.,  136  Mich.  528.  a    failure    to    redeliver    makes    a 

99a  Abbott's  Trial  Evidence,  562,  ■prima  facie  case  of  negligence. 


PAET  SECOT^TD 


PLEDGE  OR  PAWN 


CHAPTER  I. 


THE  RELATION. 


215. 

Pignus. 

216. 

The  scope  of  the  business. 

217. 

Definition. 

233. 

218. 

Some  essentials. 

219. 

Competent  parties. 

220. 

There  must  be  assent  of 

the  parties. 

234. 

221. 

Title    of    the    property — 
Authority  to  pledge. 

222. 

Corporations — P  a  r  t  n  e  r- 

235. 

ships — Agencies. 

223. 

Property    the    subject    of 
the  pledge. 

236. 

224. 

Corporeal   or  incorporeal. 

237. 

225. 

Property  not  in  existence 
or  acquired. 

226. 

Exceptions. 

227. 

Exempt  property  may  be 
pledged. 

237c 

228. 

Pensions  and  pay  to  offi- 
cers and  soldiers. 

229. 

The  debt  or  engagement. 

230. 

Pledge  as  collateral  secu- 
rity. 

238. 

231. 

Contract  should  spec- 

239. 

ify  debt  secured. 

240. 

232. 

Pledge  may  be  to  se- 

cure  past,  present  or 
future  indebtedness. 

The     pledgor     may 

pledge  his  property  to 
secure  the  debt  of  an- 
other. 

As  to  holding  prop- 
erty for  former  or  an- 
other debt. 

Continuing  security — 

Future  transactions. 

When  several  debts — 

Applications  of  payment. 

A  plodge  which  se- 
cures a  debt  bearing  in- 
terest secures  the  inter- 
est as  well  as  the  debt. 

Delivery  of  the  property 
by  the  pledgor — Accept- 
ance and  continued  pos- 
session of  the  property 
by  the  pledgee. 

If  property  not  delivered — 
Pledge,  when  good. 

The  delivery. 

Constructive  or  symbol- 
ical delivery. 


§  215.  Pignus. — This  class  of  bailments  belongs  to  the  gen- 
eral class  of  benefit  bailments,  that  is,  bailments  for  the  benefit 
of  both  parties,  and  to  the  Roman  classification  called  pignus. 

Pignus  is  a  Latin  word  and  signifies  pledge;  the  deposit  of 
the  thing,  or  the  transfer  of  the  possession  of  it,  or  dominion 


190  PLEDGE  OR  PAWN.  [§   215. 

over  it  as  security  for  the  performance  of  an  obligation.  "The 
essential  idea  in  the  Roman  and  civil  law  is  the  putting  of 
property,  whether  of  a  chattel  or  land,  or  territorial  jurisdic- 
tion (or  servants  or  children  when  thej^  are  regarded  as  prop- 
erty), imder  the  hand  of  the  creditor  or  pledgee  as  security,  so 
that,  although  the  right  of  the  owner  was  not  extinguished,  the 
creditor  or  pledgee  could  enforce  his  claim  without  legal  pro- 
ceedings, or  no  effort  to  gain  possession;  and  this  is  also  the 
essential  idea  in  paw7i  and  also  in  the  strict  use  of  pledge ;  while 
hypothec  and  mortgage  imply  that  the  owner  retains  possession 
and  that  the  creditor  has  only  the  right  of  action,  or  a  right 
to  demand  possession  in  the  contingencies  agreed  on. ' '  ^ 

It  is  suggested  by  some  of  the  writers  upon  this  subject  that 
a  pledge  is  of  more  modem  application,  and  has  a  different 
and  broader  significance  than  the  term  "pawn,"  or  the  business 
of  pawning;  that  at  an  early  day  the  business  was  not  known 
by  the  term  "pledge,"  but  was  rather  confined  to  that  of  pawn- 
ing of  personal  effects,  and  did  not  embrace  the  larger  transac- 
tions of  modern  business,  but  was  limited  to  the  personal  pawn- 
ing of  personal  articles  of  adornment  and  use.  It  is  true  the 
subject  generally  suggests  the  three  golden  balls  and  a  show 
window  of  some  little  office  filled  with  jewelry,  watches,  dia- 
monds, bank-bills,  gold  and  silver  money  displayed  to  lure  the 
poor  unfortunate  who  must  realize  a  small  sum,  to  step  inside 
and  leave  what  valuables  he  has  left,  and  take  away  a  pittance 
at  a  large  rate  of  interest. 

But  to-day  this  a  very  small  part  of  the  business  embraced 
by  the  subject  we  have  in  hand.  Year  by  year  has  added  to 
the  great  volume  of  business  that  is  now  included  in  this  class 
of  bailments.  As  the  business  world  has  advanced,  as  the  age 
of  invention  and  improvement  has  more  or  less  taken  posses- 
sion of  the  pecuniary  interests  of  mankind,  larger  demands 
have  been  made  and  met  along  the  line  of  loans  and  securities, 
and  from  the  once  small  and  somewhat  unpopular  business  of 
the  pawnbroker  a  new  and  larger  business  has  emanated,  tak- 
ing on  new  and  more  respectable  habiliments.  And  while  the 
same  golden  balls  allure  the  unfortunate  to  deposit  his  few 
personal  jewels  and  adornments,  this  other  and  more  respected 
business  has  grown  into  existence  and  flourishes  under  a  differ- 
ent name,  and  is  patronized  by  larger  business  interests.     Now 

1  Century  Dictionary. 


§   218.]  THE  RELATION.  191 

we  have  not  only  the  pawnbroker,  but  the  loan  and  security 
companies,  bank  and  trust  companies,  rich  corporations  and 
individuals  who  become  pledgees,  holding  the  personal  chattels 
of  individual  business  men  and  as  well  of  great  corporations, 
so  that  the  relation  of  pledge  and  pawn  has  come  to  be  an  im- 
portant factor  in  the  modern  business  world. 

§  216.  The  scope  of  the  business. — The  scope  of  the  business 
can  hardly  be  described.  Beside  the  little  pawn  shop  which 
deals  in  the  few  little  parcels  of  property,  with  but  a  small 
amount  of  capital  invested,  may  be  found  the  banking  house 
of  immense  capital,  holding  within  its  vaults,  as  security  for  its 
immense  loans,  bonds  and  securities  of  great  amount  and  value, 
so  that  the  relation  of  pledge  and  pawn  embraces  a  large  scope 
and  variety  of  business  and  business  relations.  Not  only  is  it 
confined  to  the  public  institutions  like  pawnbrokers'  offices, 
the  banking  institutions,  the  loan  and  security  companies,  but  it 
also  embraces  a  large  amount  of  private  transactions  where,  prop- 
erty is  left  by  one  individual  with  another  as  security  for  the 
payment  of  his  debt,  or  for  the  performing  of  his  obligation. 

§  217.  Definition. — A  pledge  or  pawn  may  be  defined  to  be 
a  bailment  of  personal  property  as  security  for  the  payment  of 
a  debt  or  the  performing  of  an  obligation.-  Lord  Holt  ^  de- 
fines it:  "When  goods  or  chattels  are  delivered  to  another  as  a 
pawn  to  be  security  for  money  borrowed  of  him  by  the  bailor." 
Sir  William  Jones*  defines  a  pledge  to  be  "a  bailment  of  goods 
by  a  debtor  to  his  creditor  to  be  kept  till  the  debt  is  discharged. ' ' 

§  218.  Some  essentials. — From  the  definition  itself  it  will  be 
observed  that  there  are  certain  essentials  to  a  pledge  or  pawn, 
which  from  the  very  nature  of  the  relation  are  indispensable. 

(1)  There  must  be  competent  parties. 

(2)  Property  the  subject  of  the  pledge  or  bailment. 

(3)  A  debt  or  engagement. 

(4)  Delivery  of  the  property  by  the  pledgor;  and 

(5)  Acceptance  and  continued  possession  of  the  property  by 

the  pledgee. 

2  In  Farsan   v.   Gilbert,   114   111.  isting  or  future  debt.     Harding  v. 

App.  17,  it  is  defined  to  be  a  liea  Eldridge,   186  Mass.   39,  71  N.  E. 

created  by  the  owner  of  personal  115. 

property  by  the  mere  delivery  of  3  Coggs  v.  Bernard,  2  Lord  Ray- 
it  to  another  upon  an  express  or  mond,  909-913. 
implied  understanding  that  it  shall  4  Jones,  Bailments,  sec.  35. 
be  retained  as  security  on  an  ex- 


192  PLEDGE  OR  PAWN.  [§   220. 

§  219.  Competent  parties. — The  relation  is  one  of  contract, 
and  so  the  requirements  as  to  competency  of  parties  are  the 
same  as  in  contracts.  The  parties  must  be  competent  to  enter 
into  a  contract  relation,  and  the  same  disabilities  that  preclude 
certain  persons  from  becoming  parties  to  a  contract  apply  to 
their  assuming  this  relation. 

At  common  law,  infants,  married  women,  lunatics,  drunkards 
and  idiots  were  held  to  be  incompetent  to  enter  into  contract 
relations ;  but  while  the  general  rule  would  exclude  these  classes, 
there  are  exceptions  to  this  rule.  As,  for  example,  infants  may 
be  allowed  to  contract  for  necessaries;  and  so  may  married 
women ;  ^  a  drunkard  when  not  so  much  under  the  influence  of 
intoxicants  as  to  deprive  him  of  his  competency  to  do  business; 
a  lunatic  while  enjoying  a  lucid  interval.  And  statutes  of  the 
states  generally,  have  given  to  married  women  the  right  to  deal 
with  their  own  separate  property  and  to  make  contracts  with  ref- 
erence to  it.  This  right  would  include  contracts  for  the  pledging 
of  the  same,  but  in  such  case  it  would  be  necessary  to  show  that 
the  contract  of  pledging  was  with  reference  to  her  separate  prop- 
erty. 

All  this  has  been  discussed  in  a  former  chapter,^  and  it  will 
not  be  necessary  to  here  repeat  it. 

§  220.  There  must  be  assent  of  the  parties. — It  goes  without 
saying  that  a  contract,  either  express  or  implied,  to  be  valid, 
must  be  entered  into  by  consent  of  the  parties ;  and  if  such  con- 
sent cannot  be  legally  shown,  there  can  be  no  pledge ;  and  if  con- 
sent is  obtained  by  fraud,  or  duress,  or  misrepresentation,  it 
will  vitiate  the  contract  and  the  pledge  will  not  be  binding  upon 
the  parties. 

In  the  case  of  Mead  v.  Bunn  '^  it  was  held  that  a  pledge  ob- 
tained by  fraudulent  false  representation  was  void,  and  though 
unredeemed  by  the  debtor  it  vested  no  interest  in  the  pledgee; 
that  it  was  void  in  the  law.  "Every  contracting  party  has 
an  absolute  right  to  rely  upon  the  express  statement  of  an  ex- 
isting fact,  the  truth  of  which  is  known  to  the  opposite  party, 
and  unknown  to  him,  as  the  basis  of  a  mutual  engagement. 

A  contract  obtained  by  fraud,    though  perfect  in   form,   is 

5  Campbell   v.   White,   22   Mich.  o  Ante,  §§  13-16. 

178 ;     Chamber    of    Commerce    v.  7  32  N.  Y.  275. 

Goodman,  110  Mich.  501,  and  cases 
cited. 


§   221.]       '  THE  EELATION.  193 

void  in  law;  the  element  of  fair  and  free  consent  is  essential  to 
the  validity  of  every  mutual  engagement.  The  homely  maxim 
'honesty  is  the  best  policy'  is  nowhere  more  firmly  rooted  and 
grounded  than  in  the  foundation  of  our  civil  jurisprudence. 
No  man  can  safely  rest  on  a  title  acquired  through  his  own 
deliberate  wrong."  .  .  .  "It  is  not  necessary  to  consider 
the  question  whether  the  extortionate  terms  of  the  pledge  ren- 
dered it  void  as  contra  honos  mores,  and  opposed  to  public 
policy,  for  the  agreement  was  fatally  tainted  in  its  inception, 
and  it  was  no  sooner  concluded  between  the  parties  than  it 
was  annulled  by  operation  of  law."  The  maxim  that  fraud 
''vitiates  all  contracts"  is  applicable  here. 

§  221.  Title  of  the  property — Authority  to  pledge. — As  a 
general  rule  to  create  a  valid  pledge  the  pledgor  should  be  the 
owner  of  the  property  pledged,  or  be  duly  authorized  by  the 
owner  to  create  the  pledge.  But  if  a  pledge  is  made  and  the 
property  delivered  to  the  pledgee  by  one  having  neither  title 
to  the  property  or  authority  to  pledge  it,  the  pledge  will  be 
binding  between  the  parties  to  it  and  upon  all  the  world,  ex- 
cept the  lawful  owner;  for  by  the  act  of  pledging  the  property 
the  pledgor  impliedly  warrants  that  he  has  the  title  and  is  able 
to  create  a  valid  pledge.*  And  where  one  having  no  title  to 
the  property  or  authority  to  pledge  it  undertakes  to  create  a 
pledge  of  it  and  in  pursuance  thereof  delivers  it  to  the  pledgee, 
he  will  be  estopped  from  setting  up  the  title  afterwards  and  dur- 
ing the  continuance  of  such  pledge  acquired,  to  defeat  it ;  the 
title  thus  obtained  would  enure  to  the  benefit  of  the  pledge,  and 
the  pledgee  through  it  could  sustain  his  right  to  possession,  not 
only  against  the  pledgor,  but  against  any  others  claiming  under 
him.  And  where  the  owner  of  the  property  carelessly  or  other- 
wise so  intrusts  the  property  to  another  as  to  lead  a  reasonably 
prudent  man  to  believe  that  he  has  the  title  to  it  or  the  au- 
thority to  pledge  it,  even  though  the  title  was  not  transferred 
and  no  authority  conferred,  if  the  property  is  by  reason  of  this 
Avrongfully  pledged,  a  l)ona  fide  pledgee  of  the  same  for  value 
w^ill  be  protected,  upon  the  theory  that  as  between  two  innocent 
parties  the  one  who  has  made  it  possible  for  the  wrong  to  be  com- 
mitted must  suffer.^  But  if  the  possession  of  goods  were  obtained 
feloniously,  as  for  example  were  stolen  by  the  bailor,  a  hona 

8  Mairs  v.  Taylor,  40  Pa.  St.  446;  o  Western  Union  R.  Co.  v.  Wag- 

Goldstein  V.  Hort,  30  Cal.  372.  ner,  65  111.  197. 

13 


194  PLEDGE  OR  PAWN,  [§   222. 

iide  pledgee  as  against  the  owner  could  obtain  no  right  to  the 
property.  There  is  a  well  settled  distinction  between  the  cases 
of  possession  of  goods  obtained  by  felony  and  possession  of  goods 
obtained  by  fraud.  If  the  possession  is  obtained  by  felony  the 
owner  may  recover  his  property  from  M^homsoever  it  has  been 
been  delivered  although  the  holder  be  a  tona  fide  pledgee,  but  if 
the  pledgor  has  obtained  the  property  by  fraud  and  while  in  his 
possession  it  is  pledged  to  a  hona  fide  pledgee  who  has  no  notice 
of  the  fraud,  the  right  and  title  of  such  bo7ia  fide  pledgee  cannot 
be  defeated." 

§  222.  Corporations,  partnerships,  agencies. — ^A  corporation 
being  a  legal  entity  capable  of  holding  and  owning  property, 
recognized  in  the  law  as  a  person,  may  be  a  valid  party  to  a 
pledge  as  pledgor  or  pledgee  whenever  the  transaction  is  within 
the  scope  of  its  corporate  authority.  So  a  partnership  being 
recognized  in  the  law  as  a  concern  able  to  do  business,  to  own 
and  possess  property,  is  competent  to  be  either  a  pledgor  or  a 
pledgee  of  property  whenever  the  pledge  is  made  within  the 
scope  of  the  partnership  authority.  If,  however,  the  property 
should  be  pledged,  though  generally  within  the  scope  of  the 
business  of  the  concern,  if  it  should  appear  that  it  was  an  un- 
usual proceeding,  it  would  be  looked  upon  by  the  court  with 
some  degree  of  suspicion.  The  pledge  must  be  for  the  benefit 
of  the  concern;  that  is,  for  the  corporation  or  co-partnership; 
and  if  it  should  appear  that  it  was  pledged  to  secure  the  in- 
dividual indebtedness  of  one  of  the  partners,  or  of  one  of  the 
directors  of  the  corporation,  it  would  be  held  void  as  against 
the  creditors  of  the  concern.  Such  action  would  be  beyond 
the  scope  of  the  authority  of  a  partner  or  individual  member 
of  a  corporation. 

An  agent  may,  acting  within  the  scope  of  his  authority,  make 
his  principal,  if  the  principal  is  competent  to  be  a  party  to 

10  But  if  the  goods  have  been  the  pledgee  has  notice  of  the 
stolen  and  then  pledged  the  fraud  his  pledge  will  not  be  pro- 
pledgee  will  have  no  lien  upon  tected.  Merchants',  etc.  Bank  v. 
them  as  against  the  owner.  Aron-  Masonic  Hall,  62  Ga.  271;  Ham- 
dale  v.  Morgan,  5  Sneed  (Tenn.),  sted,  etc.  Co.  v.  Chapman,  81  N. 
703;  Wood  v.  Yeatman,  15  B.  Mon.  Y.  S.  38  80  App.  Div.  556.  Where 
(Ky.),  270;  Mowrey  v.  Walsh,  8  a  loan  was  made  in  good  faith. 
Cow.  (N.  Y.)  238;  Jarvis  v.  Rog-  Freeman  v.  Bristol  Sav.  Bank,  76 
ers,  15  Mass.  389;  Hoffman  v.  Conn.  212,  56  Atl.  527. 
Carow,  22  Wend.   (N.  \.)  285.     If 


§   224.]  THE  RELATION.  195 

the  relation,  either  a  pledgor  or  pledgee,  as  the  particular  busi- 
ness may  demand;  but  here  the  rules  of  agency  will  be  in- 
voked—  the  agent  must  have  authority  to  act  in  that  regard. 
If  he  is  a  general  agent,  and  it  is  along  the  line  of  his  duty  as 
such  general  agent,  he  would  not  need  to  have  special  authori- 
zation from  the  principal.  The  maxim  that  obtains  in  the  law 
of  agency  obtains  here :  Qui  facit  per  alium  facit  per  se. 

§  223.  Property  the  subject  of  the  pledge. — Every  kind  of 
personal  property,  whether  corporeal  or  incorporeal,  if  capable 
of  transfer  by  delivery  of  the  thing  itself,  or  by  assignment  of 
the  evidence  of  ownership,  may  be  the  subject  of  the  pledge  or 
pawn.  The  property  must  be  personalty;  real  property  cannot 
be  the  subject  of  a  pledge. 

§  224.  Corporeal  or  incorporeal. — Formerly  the  relation  of 
pledge  or  pawn  was  confined  to  corporeal  personalty,  as  articles 
of  jewelry,  wearing  apparel,  domestic  animals,  and  such  like 
personal  property,  and  did  not  include  personalty  that  is  or- 
dinarily denominated  and  known  as  incorporeal  personalty,  such 
as  shares  of  stock,  debts,  negotiable  and  non-negotiable  paper, 
choses  in  action,  and  the  like.  The  courts  proceeded  upon  the 
theory  that  such  property  could  not  be  delivered  in  the  way 
the  law  required  property  to  be  delivered  in  order  to  create  a 
pledge. 

In  the  case  of  Wilson  v.  Little  ^^  this  question  was  discussed, 
and  the  court  there  announced  the  doctrine,  which  has  been 
the  doctrine  ever  since,  that  incorporeal  personalty  may  be  the 
subject  of  a  pledge.  In  that  case  the  court  say:  "The  argu- 
ment of  the  defendant  in  this  case  is  founded  on  the  assumption 
that  when  personal  things  are  pledged  for  the  payment  of  a 
debt,  the  general  property  and  the  legal  title  always  remain 
in  the  pledgor;  and  that  in  all  cases  where  the  legal  title  is 
transferred  to  the  creditor  the  transaction  is  a  mortgage  and 
not  a  pledge.  This,  however,  is  not  invariably  true.  But  it  is 
true  that  possession  must  uniformly  accompany  a  pledge.  The 
right  of  the  pledgee  cannot  otherwise  be  consummated.  And 
on  this  ground  it  has  been  doubted  whether  incorporeal  things 
like  debts,  money  in  stocks,  etc.,  which  cannot  be  manually  de- 
livered, were  the  proper  subjects  of  a  pledge.  It  is  now  held 
that  they  are  so;  and  there  seems  to  be  no  reason  why  any 

112  N.  Y.  443. 


196  PLEDGE  OR  PAWN.  [§  226. 

legal  or  equitable  interest  whatever  in  personal  property  may 
not  be  pledged,  provided  the  interest  can  be  put,  by  actual  de- 
livery or  by  written  transfer,  into  the  hands  or  within  the 
power  of  the  pledgee,  so  as  to  be  made  available  to  him  for  the 
satisfaction  of  the  debt.  Goods  at  sea  may  be  passed  in  pledge 
by  a  transfer  of  the  muniments  of  title,  as  by  a  written  assign- 
ment of  the  bill  of  lading.  This  is  equivalent  to  actual  posses- 
sion, because  it  is  a  delivery  of  the  means  of  obtaining  posses- 
sion. And  so  debts  and  choses  in  action  are  capable,  by  means 
of  a  written  assignment,  of  being  conveyed  in  pledge." 

In  Stewart  v.  Lansing  ^^  the  subject  of  the  pledge  was  coupon 
bonds  issued  by  a  township  to  a  railroad  company;  and  in 
Penny  v.  Lynn  ^^  it  was  a  lease  of  real  estate  which  was  pledged 
as  collateral  security  for  the  payment  of  a  promissory  note. 

§  225.  Property  not  in  existence  or  not  acquired. — It  is  a 
general  rule  that  property  not  in  existence,  or  not  yet  acquired, 
cannot  be  the  subject  of  a  pledge,  for  the  reason  that  it  cannot 
be  delivered  by  the  pledgor  to  the  pledgee,  and  delivery,  as  we 
shall  see,  is  a  requisite  to  a  valid  pledge.  The  courts,  however, 
have  held  that  where  a  contract  to  pledge  has  been  made,  and 
the  contract  cannot  be  carried  out  by  reason  of  this  general 
rule,  the  agreement  would  attach  to  the  property  as  soon  as  it 
is  produced  or  comes  into  the  ownership  or  possession  of  the 
pledgor;  and  it  may  be  said  that  in  case  of  failure  of  the 
pledgor  to  carry  out  the  contract  to  pledge,  an  action  would 
lie  for  whatever  damages  the  pledgee  may  have  suffered  by 
reason  of  it.  This,  however,  is  more  in  the  nature  of  a  contract 
to  pledge,  and  can  hardly  be  held  to  be  a  pledge  in  the  full 
meaning  and  extent  of  that  relation.^* 

§  226.  Exceptions. — But  to  the  general  rule  above  men- 
tioned there  are  exceptions.  Where  property  has  a  potential 
existence  and  the  pledgor  has  a  potential  interest  in  it,  it  may 
be  the  subject  of  a  pledge  or  pawn.  It  is  not  enough  that  the 
pledgor  should  have  a  mere  possibility  or  expectancy  of  acquiring 

12  104  U.  S.  505.  1*  Pledge  of  uncut  timber.     No- 

13  58  Minn.  371,  59  N.  W.  1043;  bels  v.  Christian,  etc.  Co.,  113  Ala. 
Morris  Canal  Co.  v.  Fistier,  9  N.  220.  Property  not  in  existence. 
J.  Eq.  667;  Schouler's  Bailments,  Waldie  v.  Doll,  29  Cal.  555;  Ma- 
sec.  172;  Green  v.  Sinker,  Davis  &  comber  v.  Parker,  14  Pick.  497; 
Co.,  135  Ind.  434,  35  N.  E.  262,  16  Smith  v.  Atkins,  18  Vt.  461;  Good- 
Fed.  324.  now  V.  Dunn,  21  Me.  86, 


§  226,] 


THE  RELATION. 


197 


the  property;  it  must  be  a  present  interest  in  the  property  of 
which  the  thing  pledged  is  the  product,  growth  or  increase. 
For  example,  the  owner  of  a  flock  of  sheep  may  pledge  the 
wool  to  be  grown  on  his  sheep  during  the  year,  but  he  cannot 
pledge  the  wool  to  be  grown  upon  the  sheep  of  another  per- 
son, or  upon  sheep  which  he  expected  to  purchase,  or  of  which 
he  probably  would  come  into  possession.  So  the  crops  to  be 
grown  upon  his  own  land  may  be  the  subject  of  a  pledge  by  the 
pledgor,  but  not  crops  on  the  lands  of  another,  unless  the  pledgor 
has  a  present  interest  in  the  land  and  the  crop.  This  is  upon  the 
theory  that  in  the  natural  course  of  events  the  property  pledged 
will  be  produced  as  the  property  of  the  pledgor.  As  in  the  case 
of  the  wool  to  be  grown  upon  the  sheep  owned  by  the  pledgor,  in 
the  natural  course  of  events  the  wool  will  grow  and  will  be  the 
property  of  the  pledgor. ^^ 


15  Low  V.  Pew,  108  Mass.  347; 
Jones  V.  Richardson,  10  Mete.  481; 
Bellows  V.  Wells,  36  Vt.  599;  Van 
Hoozer  v.  Corey,  34  Barb.  9.  In 
Low  V.  Pew,  108  Mass.  347,  the 
court  used  this  language:  "It  is 
an  elementary  principle  of  the 
law  of  sales  that  a  man  cannot 
grant  personal  property  in  which 
he  has  no  interest  or  title.  To  be 
able  to  sell  property  he  must  have 
a  vested  right  in  it  at  the  time  of 
the  sale.  Thus,  it  has  been  held 
that  a  mortgage  of  goods  which 
the  mortgagor  does  not  own  at 
the  time  the  mortgage  is  made, 
though  he  afterwards  acquires 
them,  is  void.  Jones  v.  Richard- 
son, 10  Met.  481.  'ihe  same  prin- 
ciple is  applicable  to  all  sales  of 
personal  property.  Rice  v.  Stone, 
1  Allen,  566,  and  cases  cited; 
Head  v.  Goodwin,  37  Me.  181.  It 
is  equally  well  settled  that  it  is 
sufficient  if  the  seller  has  a  poten- 
tial interest  in  the  thing  sold. 
But  a  mere  possibility  or  expect- 
ancy of  acquiring  property,  not 
coupled  with  any  interest,  does 
not   constitute    a   potential    inter- 


est in  it  within  the  meaning  of 
this  rule.  The  seller  must  have 
a  present  interest  in  the  property, 
of  which  the  thing  sold  is  the  pro- 
duct, growth  or  increase.  Having 
such  interest,  the  right  to  the 
thing  sold,  when  it  shall  come 
into  existence,  is  a  present  vested 
right,  and  the  sale  of  it  is  valid. 
Thus,  a  man  may  sell  the  wool  to 
grow  upon  his  own  sheep,  but  not 
upon  the  sheep  of  another;  or  the 
crops  to  grow  upon  his  own  land, 
but  not  upon  land  in  which  he  has 
no  interest.  The  same  principles 
have  been  applied  by  this  court  to 
the  assignment  of  future  wages  or 
earnings.  In  Muihall  v.  Quinn,  1 
Gray,  105,  an  assignment  of  fut- 
ure wages,  there  being  no  con- 
tract of  service,  was  held  invalid. 
In  Hartley  v.  Tapley,  2  Gray,  565, 
it  was  held  that,  if  a  person  is 
under  a  contract  of  service,  he 
may  assign  his  future  earnings 
growing  out  of  such  contract.  The 
distinction  between  the  cases  is, 
that  in  the  former  the  future 
earnings  are  a  mere  possibility, 
coupled  with  no  interest,  while  in 


198  PLEDGE  OR  PAWN.  [§   227. 

Natural  increase. — The  pledge  of  the  property  would  carry 
with  it  the  natural  increase  of  the  pledged  property.  As,  for 
example,  if  the  property  were  coupon  bonds,  the  pledgee  would 
have  the  right  to  collect  the  coupons  as  they  matured,  and  ap- 
ply the  amount  upon  the  indebtedness;  or  if  it  were  a  mort- 
gage or  note,  to  collect  the  interest  upon  them  as  it  accrued; 
or  if  it  were  animals,  the  increase  bom  during  the  time  of 
the  possession  of  the  pledgee  would  be  held  subject  to  the 
pledge,  and  become  a  part  of  the  pledged  property;  the  rule 
being  that  "the  increase  follows  its  dam." 

§  227.  Exempt  property  may  be  pledged. — By  the  statutes 
of  most  of  the  states,  if  not  of  all,  certain  property  is  declared 
to  be  exempt  from  execution,  and  the  courts  have  been  very 
jealous  of  the  rights  given  by  reason  of  these  exemptions;  as, 
for  example,  the  exempting  of  food  and  provisions  sufficient  to 
keep  the  family  for  six  months,  the  two  cows,  the  ten  sheep, 
the  team  and  vehicle  for  carrying  on  the  business  of  the  debtor 
if  engaged  in  business  requiring  such  property.  These  exemp- 
tions have  been  considered  as  humane  and  just.  Of  course 
the  property  exempted  differs  in  different  states;  nevertheless 
the  owner  of  this  property  is  at  liberty  to  dispose  of  it,  and  so 
may  pledge  it  for  debts;  some  of  the  states  requiring,  how- 
ever, where  it  is  pledged  or  mortgaged,  that  the  instrument 
creating  the  pledge  or  mortgage  shall  be  signed  by  the  wife  if 
the  property  is  owTied  by  a  married  man. 

In  Frost  v.  Shaw  ^^  the  plaintiff  commenced  suit,  claiming  that 

the  latter  the  possibility  of  future  Hoeg,  18  Pick.  168,  and  Tripp  v. 
earnings  is  coupled  with  an  inter-  Brownell,  12  Cush.  376.  In  both 
est,  and  the  right  to  them,  though  of  these  cases  it  was  held  that  the 
contingent  and  liable  to  be  de-  lay  or  share  in  the  profits,  which 
feated,  is  a  vested  right.  In  the  a  seaman  in  a  whaling  voyage 
case  at  bar,  the  sellers,  at  the  agreed  to  receive  in  lieu  of  wages, 
time  of  the  sale,  had  no  interest  was  assignable.  The  assignment 
in  the  thing  sold.  There  was  a  in  each  case  was,  not  of  any  part 
possibility  that  they  might  catch  of  the  oil  to  be  made,  but  of  the 
halibut,  but  it  was  a  mere  possi-  debt  under  which  the  shipping 
bility  and  expectancy,  coupled  articles  would  become  due  to  the 
with  no  interest.  We  are  of  opin-  seaman  from  the  owners  at  the 
ion  that  they  had  no  actual  or  po-  end  of  the  voyage.  The  court 
tential  possession  of  or  interest  treated  them  as  cases  of  assign- 
in  the  fish;  and  that  the  sale  to  ments  of  choses  in  action." 
the  plaintiffs  was  void.  The  le  Ohio  St.  270. 
plaintiffs    rely    upon    Gardner    v. 


§   228.]  THE  RELATION.  199 

certain  property  sold  was  exempted  by  law  from  execution. 
The  property  had  been  pledged  to  secure  the  payment  of  a 
promissory  note;  default  had  been  made  in  the  payment,  judg- 
ment was  taken  on  the  note,  and  the  property  levied  upon  and 
sold.  In  the  opinion  Bartlett,  J.,  says:  "Although  the  humane 
provisions  of  law  exempting  certain  articles  of  necessity  from 
execution  for  the  payment  of  debts  may  be  entitled  to  a  liberal 
construction,  the  settled  principles  which  govern  the  rights  of 
private  property  are  not  to  be  overlooked.  The  owner  of  the 
chattels  exempted  from  execution  is  not  divested  of  the  right 
of  disposing  of  the  property  himself,  either  by  sale  or  by  pledge, 
in  security  for  the  payment  of  his  debts,  and  in  case  of  a  pledge 
or  a  chattel  mortgage  the  owner  clearly  waives  the  benefit  of  the 
exemption  so  far  as  the  incumbrance  extends  or  is  operative," 

§  228.  Pensions  and  pay  to  ofl&cers  and  soldiers. — ^From 
time  immemorial  it  has  been  held  by  the  courts,  on  the  ground 
of  public  policy,  that  emoluments  of  officers  and  soldiers,  includ- 
ing pensions  to  discharged  soldiers,  should  be  exempted  from 
pledge,  or  pawn,  or  sale  on  execution. 

The  English  courts  afford  many  examples  of  the  exemption 
of  pay  to  officers,  though  in  some  cases  they  have  held  that  by 
procedure  in  chancery  the  money  might  be  reached.  In  an 
early  case,  McCarthy  v.  Gonld,^~  the  chancellor  says:  "It  has 
been  decided  both  at  law  and  in  equity  that  the  half-pay  of  an 
officer  is  not  assignable  or  attachable,  on  principles  of  public 
policy.  In  the  case  of  Stone  v.  Lidderdale,  the  reason  given 
was  that  he  may  be  forthcoming  when  his  services  are  required; 
but  Lord  Chief  Baron  McDonald,  in  his  judgment,  makes  a 
distinction  between  the  case  of  a  half-pay  officer  and  of  a 
pension  granted  to  an  individual.  In  this  case  the  grant  of  the 
pension  was  to  Lord  Westmeath  and  his  assigns.  He  has  as- 
signed it  to  the  defendant,  who  is  in  the  receipt  of  it,  and  pay- 
ment is  made  to  him  on  his  receipt.  It  is  not  a  chose  in  ac- 
tion, but  a  grant,  and  may  be  reached  by  the  process  of  this 
court,  and  the  proper  mode  of  effecting  this  is  by  restrain- 
ing the  defendant  from  receiving  his  pension  and  directing  the 
sequestrators  to  receive  the  same  at  the  treasury  without  serv- 
ing any  order  on  the  lords  of  the  treasury  for  that  purpose. ' ' 

In  the  United  States,  not  only  has  it  been  considered  against 

"Ball  &  Beatty's  Rep.  389;  Lidderdale  v.  Montrose,  4  Term.  R.  248. 


200  PLEDGE  OK  PAWN.  [§   229. 

public  policy  not  to  protect  the  pension  certificates  of  the  sol- 
diers from  sale,  pledge,  or  execution,  but  the  congress  of  the 
United  States  has  passed  a  statute  regulating  the  subject.^^ 

§  229.  The  debt  or  engagement. — It  is  essential  to  every 
valid  contract  that  it  should  be  supported  by  a  consideration; 
so  the  contract  creating  this  relation  must  be  supported  by  a 
consideration.  The  debt  or  agreement  which  the  pledgor  seeks 
to  secure,  furnishes  a  consideration  upon  the  part  of  the  pledgee 
to  support  the  pledge.  This  consideration,  in  order  to  support 
the  contract,  must  of  necessity  be  a  valid  one.  It  therefore 
follows  that  the  debt  or  engagement  that  is  sought  to  be  se- 
cured must  be  valid,  and  if  it  be  an  illegal  debt,  or  the  engage- 
ment be  illegal  or  against  public  policy  or  good  morals,  the 
consideration  for  the  pledge  will  fail. 

In  Taylor  v.  Chester  ^^  the  plaintiff  deposited  with  defendant 
the  half  of  a  50?.  banknote  by  way  of  pledge  to  secure  the 
payment  of  money  due  from  the  plaintiff  to  the  defendant. 
The  debt  was  contracted  for  wine  and  suppers  supplied  to  the 
plaintiff  by  the  defendant  in  a  brothel  kept  by  her,  to  be  there 
consumed  in  a  debauch,  the  plaintiff  having  brought  action  to 
recover  the  half  note.  Held,  that  the  maxim  in  pari  delicto 
potior  est  conditio  possidentis  applied,  and  that  the  plaintiff 
could  not  recover  without  showing  the  true  character  of  the 
deposit,  and  that  being  an  illegal  consideration,  to  which  he 

i«  R.  S.  U.  S.,  sec.  4745.  "Any  same  has  been  so  disposed  of  to 
pledge,  mortgage,  sale,  assign-  any  person."  Moffatt  v.  Van 
ment,  or  transfer  of  any  right,  Doran,  4  Bosw.  (N.  Y.)  609.  "In 
claim,  or  interest  in  any  pension  an  action  to  recover  possession 
which  has  been  or  may  hereafter  of  a  pension  certificate  issued  to 
be  granted,  shall  be  void  and  of  the  plaintiff,  it  is  no  defense 
no  effect;  and  any  person  acting  either  legal  or  equitable  that  the 
as  attorney  to  receive  and  receipt  plaintiff  left  such  certificate  with 
for  money  for  and  in  behalf  of  the  plaintiffs  as  security  for  goods 
any  person  entitled  to  a  pension  thereafter  sold  and  delivered  by 
shall,  before  receiving  such  money  them  to  him,  relying  on  such  se- 
take  and  subscribe  an  oath  to  be  curity,  and  that  there  is  a  balance 
filed  with  the  pension  agent,  with  due  to  them  for  such  goods.  Such 
the  vouchers  now  required  by  facts  do  not  create  a  lien  in  de- 
law,  to  the  proper  accounting  fendanfs  favor  upon  the  certifi- 
officer  of  the  treasury,  that  he  cates,  nor  constitute  a  right  to 
has  no  interest  in  such  money  any  relief  in  this  action." 
by  any  pledge,  mortgage,  sale,  as-  is  L.  R.  4  Q.  B.  309 ;  Ohitty  on 
signment  or  transfer,  and  that  he  Contracts,  597  (6th  ed.). 
does  not  know  or  believe  that  the 


§   230.]  THE  RELATION.  201 

himself  was  a  party,  he  was  precluded  from  obtaining  the  as- 
sistance of  the  law  to  recover  it  back. 

It  is  also  said  in  Chitty  on  Contracts,  "Whenever  the  con- 
tract which  the  parties  seek  to  enforce,  be  it  express  or  im- 
plied, is  expressly  or  by  implication  forbidden  by  the  common 
or  the  statute  law,  no  court  will  lend  its  assistance  to  give  it 
effect.  .  .  .  And  the  test  as  to  whether  a  demand  con- 
nected with  an  illegal  transaction  be  capable  of  being  enforced 
at  law  is  whether  the  plaintiff  must  rely  on  such  transaction 
in  order  to  establish  his  case."  Such  contracts  are  also  invalid 
and  will  be  impeached  on  the  ground  of  public  policy. 

In  Story's  Equity  Jurisprudence  the  doctrine  is  laid  down 
that  where  parties  are  concerned  in  illegal  agreements  or  other 
transactions,  whether  they  are  mala  prohihita  or  mala  in  se, 
courts  of  equity,  following  the  rule  of  law  as  to  participators  in 
a  common-law  crime,  will  not  interpose  to  grant  any  relief,  act- 
ing upon  the  well-known  maxim  ''in  pari  delicto  potior  est 
conditio  defenditis  et  possidentis."  ^^  It  therefore  follows  that 
the  rule  of  law  is,  that  if  the  consideration  of  the  debt  for 
which  the  property  is  pledged  is  an  illegal  or  immoral  one,  the 
courts  will  not  lend  their  aid  to  secure  such  a  debt,  but  will 
adopt  the  rule  so  well  settled  in  such  cases,  that  the  law  will 
leave  the  parties  where  it  found  them.  And  so  if  a  pledgor 
voluntarily  delivers  his  property  to  secure  such  an  immoral  or 
illegal  debt,  the  courts  will  not  assist  him  to  recover  his  prop- 
erty back,  but  will  leave  it  as  the  parties  left  it;  therefore  it 
follows  that  the  pledgor  could  not  recover  the  property  until 
he  had  paid  the  debt. 

§  230.  Pledge  as  collateral  security. — Property  is  often 
pledged  as  collateral  security  for  the  payment  of  promissory 
notes  or  other  negotiable  paper,  with  full  power  to  sell  the 
pledged  property  if  default  is  made  in  paying  the  debt.  The 
pledge  may  be  made  to  secure  the  payment  or  obligation  of 
the  pledgor  or  any  other  person.  The  rights,  duties  and  lia- 
bilities of  the  parties  to  such  a  pledge  will  be  discussed  under 
another  head.^^ 

20  story's    Eq.    Juris.    298.       In  the  goods  were  purchased  to  be 

Biggs  V.  Lawrence,  3  T.  R.  454,  it  smuggled   and    that    they   packed 

Is   held    that   the    plaintiffs   could  them  for  that  purpose.     Clugas  v. 

not  recover  for  goods  sold  to  the  Penaluna  4  T.  R.  466. 

defendants  where  they  knew  that  21  Post,  §  313.    A  liability  for  an- 


202  PLEDGE  OR  PAWN.  [§   231. 

§  231. Contract  should  specify  debt  secured. — The  con- 
tract or  agreement  creating  the  pledge  should  specify  the  par- 
ticular debt  that  is  to  be  secured.  This  is  important,  as  it  can 
only  be  determined  by  the  agreement  of  the  parties  what  obli- 
gation the  property  is  held  to  secure,  and  the  pledged  property 
cannot  be  held  by  the  pledgee  as  security  for  any  other  debt 
than  that  intended  to  be  secured  and  which  is  in  the  contract 
by  express  terms  or  implication.  If  the  indebtedness  for  M'hich 
the  collateral  is  pledged  is  not  specified,  but  the  pledgor  simply 
pledges  the  property  generally  for  any  indebtedness  then  exist- 
ing or  to  be  created  in  the  future,  the  property  may  be  held 
in  such  case  as  security  generally  for  any  and  all  indebted- 
ness.^^ 

In  Garton  v.  Union  City  Bank  -^  the  pledge  consisted  of  a 
promissory  note  of  $1,000  given  to  the  cashier  or  order  of  the 
bank,  to  which  was  appended:  "This  note  is  to  be  used  as  col- 
lateral security  to  A.  Climie's  notes."  In  that  case  the  court 
held  that  it  was  proper  to  introduce  oral  proof  to  show  the  true 
consideration  and  the  identity,  nature  and  amount  of  demands 
to  which  the  note  was  collateral;  the  court  using  this  language: 
"The  purpose  was  to  correctly  apply  the  note  to  the  transac- 
tions it  indicated  it  was  intended  to  cover,  and  confine  it  to  the 
very  claims  it  purported  to  secure.  ...  It  indicated  on  its 
face,  or  rather  by  the  memorandum  connected  with  it,  that  it 
was  to  be  carried  out  and  enforced  restrictively  as  against  Mrs. 
G.  (the  maker),  and  with  reference  to  particular  bank  de- 
mands against  Climie,  and  the  intent  could  not  be  carried  out 

other  upon  a  contract  still  in  force  pend  upon  the  contract  by  which 

is  a  sufficient  consideration  for  a  the   property  was   pledged.     Nor- 

pledge,  and  the  ratio  of  the  con-  ton  v.  Plumb,  14  Conn.  512;  Fair- 

sideration    to    the    value    of    the  field  v.  Holley,  10  Conn.  179.     In 

thing  pledged  is  of  no  importance.  San  Antonio  Nat.  Bank  v.  Blocker, 

Jewett  V.  Warren,  12  Mass.  300.  77  Tex.  73,  it  was  held  that  where 

22  Merchants'  Nat.  Bank  v.  Hall,  collateral   was    pledged   generally 

83   N.   Y.   338.     In   this   case   the  for  the  debts  of  a  partnership,  it 

force  of  the  language  of  the  agree-  could  not  be   held   for  a   private 

ment    which    created    the    pledge  debt  of  one  of  the  partners.  Loyd 

was   discussed,  as   to  whether  or  v.   Lynchburg  Nat.   Bank,   86   Va. 

not  it  was  for  debts  not  in  exist-  690;   and  see  cases  collected  and 

ence   at  the   time   of  the   pledge,  cited,  18  Am.  &  Eng.  Ency  Law, 

but    afterwards    obtained   by    the  599,  etc. 

pledgee;    the   court   holding   that  2334  Mich.  279. 
the  extent  of  the  pledge  must  de- 


§   233.]  THE  RELATION.  203 

and  strict  protection  be  accorded  Mrs.  G.'s  rights  without 
showing  the  facts." 

§  232.  Pledge  may  be  to  secure  past,  present  or  future  in- 
debtedness.— Property  may  be  pledged  to  secure  not  only  a 
debt  created  at  the  time  of  making  the  pledge,  but  also  an  in- 
debtedness past  due,  or  an  indebtedness  to  be  created  in  the 
future.  If  the  debt,  however,  be  a  past-due  debt,  that  is,  a 
debt  that  is  known  to  be  a  pre-existing  debt,  it  is  subject  to 
some  certain  limitations.  The  pledgee  or  creditor  might  not, 
under  certain  circumstances,  be  considered  a  hmia  fide  holder 
for  value  to  the  extent  that  he  could  hold  the  property  thus 
pledged  as  security  for  the  payment  of  a  pre-existing  debt 
against  the  true  owner  from  whom  it  had  been  obtained  by 
fraud,  for  the  reason  that  he  parted  with  no  consideration  in 
the  obtaining  of  the  pledge.^*  This  is  more  fully  discussed  in 
another  section.^^ 

§  233. The  pledgor  may  pledge  his  property  to  secure 

the  debt  of  another. — The  pledge  may  be  by  the  pledgor  to 
secure  another's  debt  or  obligation  as  well  as  his  own.  In  such 
case  the  pledge  is  the  same  as  surety  for  a  debt,  and  the  pledgor 
would  be  entitled  to  all  the  rights  and  limitations  that  belonged 
to  a  surety  for  a  debt  or  obligation.  And  so  any  change  in  the 
contract  of  suretyship  without  his  consent  or  knowledge,  that 
is,  such  a  change  as  would  discharge  a  surety,  would  release  and 
discharge  the  pledged  property  so  held  as  collateral  security.-" 

24  A  pledge  of  stock  by  a  stran-  26  in  Price  v.  Dime  Savings 
ger  to  secure  a  debt  past  due,  Bank,  124  111.  317,  the  court  held 
without  any  promise  on  the  part  "that  the  change  in  the  terms  of 
of  the  pledgee  to  forbear,  is  with-  the  original  contract  without  the 
out  consideration.  Huldeman  v.  consent  of  A.  was  sufficient  to  re- 
German  Security  Bank  (Ky.),  44  lease  his  undertaking  that  his 
S.  W.  383.  Where  a  chattel  is  property  should  stand  as  security 
pledged  for  a  pre-existing  debt,  for  its  performance."  Dodgson 
the  pledgee  is  not  a  holder  for  v.  Henderson,  113  111.  360;  Davis 
value  to  the  extent  that  it  will  v.  People,  1  Gilm.  409;  Waters  v. 
enable  him  to  retain  it  against  Simpson,  2  id.  570;  Myers  v.  Bank, 
the  true  owner  from  whom  it  has  78  id.  257;  Danforth  v.  Semple,  73 
been  obtained  by  fraud,  as  he  id.  170;  Merchants'  Nat.  Bank  v. 
could  do  if  he  were  a  true  holder  Hall,  83  N.  Y.  338.  See  cases 
for  value.  Story  on  Bailments,  cited  in  brief  for  appellant,  p.  340. 
sec.  300;  Schouler  on  Bailments,  The  court  at  page  348  say:  "The 
sec.  178.  cases  cited  on  the  second  question 

25  Post,  sec.  244  are   based   upon    a   principle    not 


204 


PLEDGE  OE  PAWN. 


[§  234 


If,  however,  the  contract  of  pledge  was  such  that  the  court 
might  hold  that  it  would  be  inclusive  of  extensions  of  time  of 
payment,  then  in  such  case  such  extensions  would  not  discharge 
or  release  the  pledge.^^ 

§  234. As  to  holding  property  for  a  former  or  another 

debt. — The  mere  fact  that  the  pledgor  is  indebted  to  the 
pledgee  on  a  former  or  other  indebtedness  will  not  authorize 
the  pledgee  to  retain  the  pledged  property  after  the  debt  or 
obligation  for  which  it  is  pledged  is  discharged,  unless  there 
is  some  agreement  from  which  such  an  intention  of  the  parties 
can  be  drawn.^^  The  pledge  may  be  for  one  or  many  debts, 
but  the  extent  of  the  pledge,  the  debt  or  obligation  it  is  pledged 
to  secure,  must  be  determined  by  the  agreement.  In  Re  Mosser's 
Estate  ^^  it  was  held,  where  a  judgment  was  given  as  collateral 


denied,  that  a  gift  of  time  to  a 
principal  debtor  discharges  the 
surety;  but  it  will  be  found  that 
in  them  new  arrangements,  not 
contemplated  at  the  time  of  enter- 
ing into  the  guaranties  by  any  of 
the  parties,  are  introduced;  and 
thus  the  state  of  circumstances 
altered  without  the  contempla- 
tion and  without  the  consent  of 
one  of  the  parties." 

27  White's  Bank  v.  Myles,  73  N. 
Y.  335;  First  Nat.  Bank  of  Omaha 
V.  Goodman  et  al.  (Neb.),  79  N. 
W.  1062.  Where  policies  were 
pledged  by  the  wife  to  secure  a 
claim  for  which  continuing  se- 
curity had  been  given  granting  ex- 
tension of  time  to  the  debtor,  the 
pledge   would   not  be   discharged. 

28  Jones    on    Pledges,    sec.    355 
Baldwin    v.    Bradley,    69    111.    32 
Jarvis   v.    Rogers,    15   Mass.    389 
Mahoney  v-  Caperton,  15  Cal.  314 
Buckley  v.  Garrett,  60  Pa.  St.  333. 
In    determining    the    effect    to   be 
given   to  an   absolute   assignment 
of  securities,    the   whole   transac- 
tion between  the  parties  must  be 
taken  into  account.    Boardman  v. 


Holmes,  124  Mass.  438;   Hilton  v. 
Sims,  45  Ga.  565. 

29  161  Pa.  St.  469.  "If  it  be  com- 
petent for  the  parties  to  a  judg- 
ment by  their  own  parol  agree- 
ment to  change  the  purposes  for 
which  it  may  be  held — and  that 
they  may  do  so  is  not  open  to 
question, — I  see  no  reason  why 
such  parol  agreement  may  not  be 
entered  into  on  behalf  of  either 
by  an  agent  acting  under  parol 
authority."  In  Philler  v.  Jewett, 
166  Pa.  St.  456,  it  was  held  that 
securities  deposited  by  a  bank  be- 
longing to  a  clearing-house  asso- 
ciation with  the  clearing-house 
committee,  and  pledged  according 
to  the  clearing-house  regulations 
adopted  by  the  associative  banks, 
first  for  payment  of  its  daily  bal- 
ances, and  next  as  security  for 
other  indebtedness  due  to  mem- 
bers of  the  association,  will  be 
held  after  payment  of  daily  bal- 
ances to  meet  a  deficiency  of  other 
securities  given  by  it  to  the  clear- 
ing-house committee  to  provide 
for  payment  of  clearing-house  cer- 
tificates issued  to  it  and  in  main- 
taining its  credit. 


§   235.]  THE  RELATION.  205 

security  for  a  note  which  was  afterwards  paid,  a  parol  agree- 
ment between  the  creditor  and  the  agent  of  the  debtor  to  con- 
tinue such  judgment  as  security  for  certain  other  notes  of  the 
debtor  was  valid  as  against  subsequent  judgment  creditors  of 
such  debtor. 

§  235.  Continuing  security — Future  transactions. — By 

the  agreement  of  the  parties  the  pledge  is  often  made  to  cover 
future  transactions,  such  as  renewal  of  notes,  extension  of  time 
of  payment,  and  even  new  and  additional  indebtedness.  It  is 
a  matter  of  frequent  occurrence  that  banks  take  from  their 
customers  bank  notes  and  mortgages  with  the  understanding 
that  they  shall  be  held  as  collateral  security  to  cover  ail  in- 
debtedness, renewals  or  advances  made  to  the  pledgor;  this  is 
generally  done  by  entering  into  a  written  contract,  but  it  may 
be  by  parol  and  delivery  of  the  property  pledged.  These 
pledges  may  be  said  to  be  in  the  nature  of  continuing  securities 
and  the  courts  will  enforce  such  transactions.  Such  was  the 
security  in  question  in  Merchants'  Nat.  Bank  v.  Hall,^^  where 
certain  stocks  were  assigned  to  the  plaintiff  as  security  for 
payment  of  any  demands  plaintiff  might  have  from  time  to 
time  against  assignor's  husband,  who  at  the  time  was  largely 
indebted  to  the  plaintiff.  The  court  held  that  the  assignment 
by  its  terms  included  and  secured  all  demands  had  and  held 
by  the  plaintiff  against  the  husband  of  the  assignor  after  its 
execution,  as  well  as  those  existing  at  that  time,  and  that  the 
circumstances  disclosed  this  to  have  been  the  intent  of  the 
parties;  also  that  the  assignment  was  a  continuing  security, 
and  that  an  extension  of  time  by  renewals,  in  the  ordinary 
course  of  business,  granted  by  the  plaintiff  for  payment  of  any 
of  the  debts,  did  not  discharge  the  lien  upon  the  stock.  Such 
a  pledge  is  as  limitless  as  it  well  could  be.  .  .  .  As  w^as 
said  by  the  court,  "it  specifies  no  kind  of  demand,  no  amount, 
no  length  of  time  of  any  indebtedness  for  which  the  stock 
might  be  liable.  The  pledgor,  however,  of  such  a  pledge  could 
at  any  time  by  a  notice  to  the  pledgee  limit  the  pledge,  but 
until  notice  of  such  limitation  was  given  it  would  be  held  to 
be  a  continuing  security. ' '  ^^ 

30  83  N.  Y.  338.  man,  52  Pa.  St.  458;  Texas  Bank- 
si  Agawam  Bank  v.  Strever,  18  ing  Co.  v.  Turnley,   61  Tex.   365. 
N.  Y.  502;  Douglas  v.  Reynolds,  7  In  Tennessee  it  was  held  that  the 
Pet.   (U.  S.)   113;   McClure  v.  Ro-  holder     of     paper     received     as 


206  PLEDGE  OR  PAWN.  [§   236. 

§  236, When  several  debts — Application  of  payment. — 

The  rule  of  law  as  to  the  application  of  payments  where  there 
are  several  distinct  debts  secured  by  a  pledge  of  property  is 
the  same  as  exists  in  other  cases;  if  the  pledgor  makes  no  ap- 
plication of  the  payment  to  any  particular  debt  at  the  time  of 
making  it,  the  pledgee  may  apply  such  payment  to  whichever 
of  the  secured  debts  he  pleases,  and  if  the  pledgee  is  compelled 
to  foreclose  the  pledge,  he  may,  in  the  absence  of  any  stipula- 
tion in  the  contract  or  pledge,  so  apply  the  receipts  to  the 
debts  or  obligations  so  secured.     If  some  of  the  debts  are  also 
secured  by  collaterals  pledged  by  other  persons  than  the  debtor, 
he  still  has  the  right  to  apply  the  amount  received  from  the 
foreclosure  to  those  debts  that  are  not  thus  secured.^^    And  it 
has  been  held  that  the  sureties  for  the  secured  debt  cannot  be 
subrogated  to  the  rights  of  the  pledgee  in  the  proceeds  of  the 
foreclosure,  nor  are  they  entitled  to  have  the  fund  apportioned 
or  in  any  way  applied  to  all  of  the  debts  secured  by  the  pledge. 
On  the  other  hand,  the  pledgee  may  make  such  application  as 
will  be  for  his  best  interest,  if  he  is  not  violating  any  stipula- 
tion in  the  contract  of  pledge.     In  order  to  obtain  the  privi- 
lege of  being  subrogated  to  the  rights  and  privileges  of  the 
pledgee,  such  pledgors  who  have  furnished  the  further  security 
by  pledge  must  first  pay  all  of  the  debts  the  property  stands 
pledged  for;  and  in  that  case  they  may  be  substituted  and  stand 
in  the  place  of  the  pledgee  creditor.     But  if  only  one  or  more 
of  the  debts  are  paid  and  the  property  is  pledged  for  them  and 
other  debts,  the  pledgee  will  hold  the  property  as  security  for 
any  other  unpaid  debts.     In  Wilcox  v.  Fair  Haven  Bank  ^^  the 
court  say:     ''It  is,  however,  undoubtedly  an  established  rule 
of  equity  that  a  surety  who  has  paid  the  debt  of  his  principal, 
either  voluntarily   or  by   compulsion,   is   entitled    for   his    in- 
demnity to  any  property  pledged  or  collateral  security  given 
therefor  by  the  principal  to  the  creditor.     But  as  this  rule  is 
founded  on  the  principles  of  reason  and  justice  and  not  upon 

pledged  security  holds  it  subject  ss  Application  of  payment.    Fall 

to   equities   existing  at   the   time  River    Nat.    Bank    v.    Slade,    153 

of  the  transfer,  but  not  to  those  Mass.  415,  12  L.  R.  A.  131. 

arising  subsequent  thereto.    Rich-  33  7  Allen  (Mass.),  270. 
ards  V.  Rice,  9  Baxt.  (Tenn.)  290, 
40  Am.  Rep. 


§   237.]  THE  RELATION.  207 

any  contract  or  stipulation  to  that  effect  between  the  parties, 
it  follows  as  a  necessary  consequence  that  a  surety  is  not  to 
be  substituted  in  the  place  of  a  creditor,  unless  from  the  circum- 
stances of  the  case  it  is  shown  that  it  is  just  and  reasonable 
that  he  should  be.  Hence  it  is  obvious  that,  in  order  to  become 
entitled  to  such  substitution,  he  must  first  pay  the  whole  of  the 
debt  or  debts  for  which  the  property  is  mortgaged,  or  the  col- 
lateral security  is  given,  to  the  creditor;  for  it  would  be  mani- 
festly unjust  and  a  plain  violation  of  his  rights  to  compel  him 
to  relinquish  any  portion  of  the  property  before  the  obliga- 
tion, for  the  performance  of  which  it  was  conveyed  to  him 
as  security,  had  been  fully  kept  and  complied  with.  Such 
previous  payment  by  a  surety  is  alike  essential  where  there  is 
only  one  debt  and  one  surety,  and  where  there  are  many  debts, 
all  of  which  are  equally  protected  and  secured  by  the  property 
mortgaged,  and  many  several  sureties  of  the  several  debts; 
for  the  chief  and  primary  object  of  a  pledge  or  mortgage  to  a 
creditor  is  his  benefit,  protection  and  advantage  in  reference 
to  each  and  all  of  the  several  debts  which  it  was  made  or  given 
to  secure,  and  until  this  object  is  fully  accomplished  no  suretj' 
can  justly  or  lawfully  interfere  to  disturb  him  in  the  possession 
of  the  property  pledged,  or  hinder  him  from  appropriating  the 
proceeds  of  it  toward  payment  of  any  such  debt  which  he  can- 
not otherwise  collect  or  render  available." 

§  237.  A  pledge  which  secures  a  debt  bearing  interest 

secures  the  interest  as  well  as  the  debt. — This  follows  as  a  mat- 
ter of  course.  It  would  be  presumed  from  the  very  fact  that 
the  debt  was  an  interest-bearing  debt  that  it  was  the  intention 
of  the  pledgor  to  secure  as  well  the  payment  of  the  interest  as 
the  payment  of  the  principal.^*  The  pledge  is  construed  to  be 
for  the  whole  debt.  By  implication  it  will  be  understood  that 
the  pledge  is  for  the  payment  of  the  whole  debt  or  engage- 
ment, unless  the  contract  of  pledge  stipulates  otherwise,  and 
so  the  payment  of  a  part  of  the  debt  will  not  release  a  pari 
of  the  pledged  property,  but  the  whole  of  the  property  may 
be  held  to  secure  the  unpaid  amount. 

34  Jones   on   Pledges,    sec.    363;  made  to  secure  only  a  part  of  the 

Boardman   v.   Holmes,   124    Mass.  debt.     Pridley  v.  Bowen,   103  111. 

438;    Baldwin   v.    Bradley,    69    111.  633,  637. 
32.     A   pledge    may    however   be 


208  PLEDGE  OR  PAWN.  [§  237a, 

§  237a.  Delivery  of  the  property  by  the  pledgor — Accept- 
ance and  continued  possession  of  the  property  by  the  pledgee. 

These  two  essentials  are  so  closely  connected  and  so  depend- 
ent upon  each  other,  that  it  is  thought  advisable  to  discuss 
them  together.  The  delivering  of  the  property  pledged  by  the 
pledgor  to  the  pledgee,  and  the  acceptance  and  continued  pos- 
session of  the  property  by  the  pledgee,  is  that  which  gives  to  the 
world  notice  of  the  pledgee's  interest  and  the  extent  of  his 
rights  to  the  property  in  his  possession.  These  stand  in  the 
place  and  stead  of  the  recording  of  a  mortgage,  or  the  filing 
of  a  lien,  as  it  is  a  well-understood  principle  of  law  that  posses- 
sion of  property  is  notice  to  all  the  world  of  all  the  rights  and 
interests  of  the  possessor  in  the  property  possessed.  It  has  been 
noticed  that  in  the  pledge  or  pawn  there  is  no  recording  of 
the  same  in  a  public  record  kept  in  some  public  office;  there  is 
no  filing  of  notice  of  the  lien  which  the  pledgee  has  upon  the 
property.  In  the  place  of  this,  and  as  effectual  as  all  this  would 
be,  is  the  fact  that  the  property  has  been  delivered  into  the 
possession  of  the  pledgee  and  is  held  by  him  as  security  for  the 
indebtedness.  Other  creditors  of  the  pledgor  may  not  actually 
know  the  extent  of  the  claim,  or  the  conditions  of  the  pledge, 
but  the  law  holds  them,  because  of  this  delivery  and  possession, 
to  a  full  knowledge  of  all  that  pertains  to  the  holding  of  the 
pledged  property  by  the  pledgee.^"^ 

35  There  must  be  a  delivery  and  a  delivery  and  continued  posses- 
continued  possession.  Dunn  v.  sion  would  cure  any  defect  in  the 
Train,  60  C.  C.  A.  113,  125  Fed.  contract  because  of  failure  to 
221;  Chittwood  v.  Langon  Zinc  name  the  specific  bonds  pledged. 
Co.,  93  Mo.  App.  225.  By  a  con-  Virginia,  Carolina,  etc.  Co.  v. 
tract  of  pledge  only  a  special  title  Nair  &  Persoll,  139  N.  C.  326,  51 
passes  to  the  pledgee,  which  de-  S.  E.  949.  And  where  the  prop- 
pends  on  actual  possession,  while  erty  is  in  the  possession  of  the 
the  title  of  the  property  remains  pledgee  for  another  purpose,  the 
in  the  pledgor;  and  so  to  hold  and  pledge  will  become  effectual  with- 
protect  the  lien  of  the  pledgee,  out  another  or  further  delivery, 
there  must  be  not  only  a  physical  Farsan  v.  Gilbert,  114  111.  App.  17. 
delivery  where  the  property  can  Pledged  certificates  of  stock  not 
be  thus  transferred,  but  there  regularly  indorsed  contained  an 
must  be  a  continued  possession  indorsement  that  they  were  hy- 
by  the  pledgee.  Harding  v.  Eld-  pothicated  to  secure  certain 
ridge,  186  Mass.  39,  71  N.  E.  115.  notes,  which  indorsement  was 
And  so  where  bonds  were  the  sub-  signed  by  the  secretary  of  the 
ject  of  the  pledge  it  was  held  that  corporation,      delivered      to      the 


§  238.] 


THE  RELATION. 


209 


§  238.  If  property  not  delivered — Pledge,  when  good. — As 
between  the  parties  to  a  pledge,  a  contract  to  pledge  would  be 
binding  even  if  the  property  had  not  been  delivered,  and  such 
a  contract  resting  upon  a  valuable  consideration  could  be  en- 
forced; for  the  reason,  among  others,  that  equity  would  con- 
sider that  as  done  which  ought  to  be  done.  Or  would  apply 
that  other  maxim,  "Equity  considers  substance  rather  than 
form."  But  before  the  doctrine  of  equitable  pledge  can  be  ap- 
plied there  must  be  a  contract  showing  that  the  debtor  de- 
signed to  subject  the  particular  property  to  the  payment  of 
the  debt.^"  But  as  against  subsequent  purchasers  in  good  faith 
or  the  creditors  of  the  pledgor,  as  we  have  already  seen,  deliv- 
ery is  an  essential;  and,  as  to  such  persons,  the  pledgee  could 
not  enforce  the  contract  of  pledge ;  there  would  be  no  notice  of 
its  existence,  and  the  pledgee  would  not  be  held  to  be  a  J)ona 
fide  holder  of  the  property.^^ 


pledgee,  held  to  constitute  a 
valid  pledge.  Hall  v.  Cayot,  141 
Cal.  13,  74  Pac.  299.  Delivery  of 
bills  receivable.  Young  v.  Upson, 
115  Fed.  192.  Must  be  delivery, 
Griffin  v.  Henry,  99  111.  App.  284. 
Succession  of  Grayard,  106  La. 
298,  30  So.  825.  Delivery  to  and 
possession  by  third  party  for 
pledgee.  Hunt  v.  Bode,  66  Ohio 
St.  255,  64  N.  B.  126;  Re  Lanaux's 
Succession,  46  La.  Ann.  1036,  25 
L.  R.  A.  577.  Bona  fides  will  not 
avail  pledgee  in  the  absence  of 
delivery  and  possession,  Geilfuss 
V.  Corrigan,  95  Wis.  651,  37  L.  R. 
A.  166.  Oil  in  a  tank  effectually 
pledged  by  written  order  to  hold 
it  as  pledgee.  First  Nat.  Bank  v. 
Harkness,  42  W.  Va.  156,  32  L. 
R.  A.  408. 

36  Hook  V.  Ayers  (C.  C.  A.),  80 
Fed.  978. 

37  A  pledge  cannot  be  created  as 
security  for  a  debt  without  a 
transfer  of  the  thing  pledged  to 
the  pledgee  or  his  agent.  Textor 
V.  Orr,  86  Md.  392.  An  executory 
contract    of    the    pledge    may    be 

.      14 


good  between  the  parties.  Kaiser 
V.  Topping,  72  111.  226;  Tuttle  v. 
Robinson,  78  111.  332.  "It  will  not 
be  enforced  to  the  injury  of 
other  creditors."  City  Fire  Ins. 
Co.  V.  Olmstead,  33  Conn.  476; 
Casey  v.  Caveroc,  96  U.  S.  467.  In 
the  case  of  Casey  v.  Caveroc  it 
was  held:  "That  possession  is  of 
the  essence  of  a  pledge,  and  with- 
out it  no  privilege  can  exist  as 
against  third  parties;  that  this 
doctrine  is  in  accordance  with 
both  the  common  and  the  civil 
law."  It  was  further  held  "that 
the  thing  pledged  may  be  in  the 
temporary  possession  of  the 
pledgor  as  special  bailee  without 
defeating  the  legal  possession  of 
the  pledgee;  but  where  it  has 
never  been  out  of  the  pledgor's 
actual  possession,  and  has  always 
been  subject  to  his  disposal  by 
way  of  collection,  sale,  substitu- 
tion or  exchange,  no  pledge  or 
privilege  exists  as  against  third 
persons."  Until  the  delivery  of 
the  pledged  property  the  transac- 
tion is  simply  an  executory  con- 


210  PLEDGE  OR  PAWN,  [§   240. 

§  239.  The  delivery. — The  delivery  should  be  of  such  a  na- 
ture that  by  it  the  pledgor  relinquishes  all  control  of  the  pledged 
property  to  the  pledgee,  and  by  it  the  pledgee  obtains  the  abso- 
lute and  unequivocal  control  of  it.  In  Mahony  v.  Hale  ^^  it 
was  held:  ''In  the  case  of  a  pledge,  the  pledgee  must  take 
possession,  and  to  retain  it  he  must  retain  possession;  an  actual 
delivery  of  property  capable  of  personal  possession,  and  a  con- 
tinued change  of  possession  is  essential."  "In  case  of  a  pledge 
the  requirement  of  possession  in  the  pledgee  is  an  inexorable 
rale  of  law,  adopted  to  prevent  fraud  and  deception.  There 
must  not  only  be  an  actual  delivery  of  the  chattels  as  distin- 
guished from  a  mere  pretense,  but  the  change  of  possession  must 
be  continuing,  not  formal,  but  substantial."  The  manner  of 
effecting  the  required  delivery,  of  course,  depends  upon  the 
nature  of  the  property.  If  the  property  is  capable  of  actual 
manual  delivery,  it  should  be  so  delivered ;  if  not,  then  the  best 
delivery  the  property  will  admit  of  should  be  made. 

§  240.  Constructive  or  symbolical  delivery. — If  the  property 
and  the  circumstances  will  admit  of  no  better  delivery,  then  a 
constructive  or  symbolical  delivery  will  be  sufficient.  As,  for 
example,  if  the  property  be  stored  in  a  warehouse  with  proper 
notice  to  the  warehouseman,  or  if  held  by  a  contract  in  the 
hands  of  a  third  person,  notice  to  the  holder  of  the  property 
has  been  held  to  be  a  sufficient  delivery. 

In  Whitaker  v.  Sumner ^°  the  court  say:  "It  seems  now  well 
settled  that  when  personal  property  is  under  a  pledge  or  lien, 
whether  created  by  operation  of  law  or  by  the  act  of  the  owner, 
the  general  property  remains  in  the  owner,  and  that  he  may 

tract  and  the  pledgee  acquires  no  the  corporate  stock  must  be  ac- 
right  of  property  in  the  thing.  companied  by  delivery  and  a  con- 
Story  on  Bailments,  sec.  297;  tinned  change  of  possession.  De- 
First  Nat.  Bank  v.  Nelson,  38  Ga.  livery,  momentary  possession  and 
391;  Wolcott  V.  Keith,  22  N.  H.  return  is  insufficient.  McFall  v. 
196;  Williams  v.  Gillespie,  30  W.  Buckeye,  etc.,  122  Cal.  468,  55 
Va.  586;  Nesbitt  v.  Macon  Bank,  Pac.  253;  Moors  v.  Reading,  167 
12  Fed.  686.  A  pledge  of  personal  Mass.  322.  Bona  fides  does  not 
property  is  invalid  as  against  the  avail  the  pledgee  in  absence  of 
pledgor's  creditors  where  no  de-  delivery  and  possession.  Geilfus 
livery  is  made,  and  no  actual,  v.  Corrigan,  95  Wis.  651,  37  L.  R. 
open  and  unequivocal  possession  A.  166;  ante,  §  237,  note  1. 
taken.  George  v.  Pierce,  55  Pac.  38  66  Minn.  463,  69  N.  W.  334; 
775;  George  v.  Matorn,  56  Pac.  53.  Casey  v.  Caveroc,  96  U.  S.  467. 
As  against  creditors,  a  pledge  of  39  20  Pick.  (Mass.)  399. 


§  240.]  THE  RELATION.  211 

transfer  it  by  a  proper  contract  and  upon  a  good  consideration, 
subject  only  to  the  lien.  And  in  such  case,  as  the  actual  cus- 
tody and  possession  of  the  goods  for  the  time  being  is  in  the 
hands  of  the  party  having  the  lien,  it  follows  that  a  construc- 
tive or  symbolical  delivery  is  sufficient  to  pass  the  property. 
An  order  by  the  vendor  upon  the  keeper,  or,  if  the  contract  of 
sale  or  conveyance  be  in  writing,  proper  and  satisfactory  no- 
tice of  the  conveyance  by  the  vendee  to  the  holder,  constitutes 
such  constructive  delivery.  Where  goods  are  lying  in  a  ware- 
house, although  subject  to  a  lien  for  keeping,  notice  to  the 
warehouse  keeper,  where  all  the  other  requisites  of  a  sale  are 
proved,  is  equivalent  to  a  delivery." 

In  Hathaway  v.  Haynes*^  it  was  held  "that  the  assignment 
in  blank  of  a  bill  of  lading  to  a  bank  that  had  by  reason  of  it 
discounted  the  draft,  conveyed  an  interest  in  the  property  to 
the  bank ;  and,  whether  that  interest  was  as  security  only  that 
the  bill  should  be  accepted,  or  that  it  should  be  both  accepted 
and  paid,  is  immaterial.  The  claimant  bank,  by  the  indorse- 
ment of  the  bill  of  lading,  was  entitled  to  hold  it  and  the  prop- 
erty described  in  it."  So,  where  the  goods  or  pledged  prop- 
erty is  incapable  of  being  delivered  by  handing  the  property 
from  one  to  another,  a  symbolical  delivery  will  be  sufficient 
to  create  the  pledge;  as,  for  example,  if  the  goods  are  stored 
in  a  warehouse,  by  delivering  the  key  of  the  building  for  the 
purpose  of  giving  to  the  pledgee  control  of  the  property,  or 
by  delivering  the  evidence  of  ownership  or  possession  with  an 
intention  of  turning  over  the  control  of  the  property  to  the 
pledgee.*^     It  may  be  said  in  the  light  of  all  the  authorities, 

40 124  Mass.  311.  ■  able  only  on  return  of  the  re- 
41  Sumner  v.  Hamlet,  12  Pick.  ceipt,"  and  held  that  the  plaintiff 
76.  In  the  case  of  Whitney  v.  was  entitled  to  show  that,  by  a 
Tibbitts,  17  Wis.  369,  the  question  general  custom  in  Milwaukee, 
was  whether,  on  a  pledge  of  flour  flour  in  store  was  transferred  by 
stored  in  a  warehouse  in  Milwau-  a  delivery  of  such  receipts  with- 
kee,  a  delivery,  by  the  pledgor,  of  out  indorsement.  The  court  say: 
the  warehouse  receipt,  without  in-  "It  seems  to  me  to  present  a 
dorsement,  constituted  a  sufllcient  stronger  case  of  delivery  than 
delivery  of  the  property  to  sus-  some  that  are  usually  referred  to 
tain  the  pledge  as  against  subse-  as  sufficient.  Take,  for  example, 
quent  attaching  creditors  of  the  the  one  of  a  delivery  of  the  key 
pledgor  and  it  appeared  that  said  of  the  warehouse  where  the  prop- 
receipt  did  not  run  to  bearer,  but  erty  is  stored.  In  that  case  the 
stated  that  the  flour  was  "deliver-  vendor,    owning    the    warehouse, 


212 


PLEDGE  OR  PAWN. 


[§  240. 


that  the  test  of  delivery  is  whether  or  not  the  property  has 
been  placed  in  the  possession  and  control  of  the  pledgee. 


might,  notwithstanding  the  deliv- 
ery of  the  key,  still  keep  posses- 
sion of  his  warehouse  and  re- 
sume control  of  the  property.  But 
where  the  property  is  in  the  ware- 
house of  a  stranger,  the  vendor, 
by  delivering  the  receipt,  divests 
himself  of  all  the  means  of  con- 


trolling or  retaining  the  property, 
and  gives  them  to  the  vendee 
quite  as  effectually  as  would  the 
possession  of  the  key.  The  mate- 
rial thing  is,  that  the  vendor  de- 
livers to  the  vendee  that  which 
enables  the  latter  in  fact  to  take 
and  control  the  property." 


CHAPTER  II. 

PLEDGING  NEGOTIABLE  PAPER. 


241.  Negotiable  paper. 

242.  An  equitable  assignment. 

243.  Pledgee  holder  for  value. 


§  244.  Whether  a  pre-existing  debt 
a  sufficient  consideration 
to  constitute  a  pledgee  a 
holder  for  value. 


§  241.. Negotiable  paper. — ^Promissory  notes, bills  of  exchange 
and  other  negotiable  paper  are  often  the  subject  of  a  pledge  or 
pawn,  and  delivery  is  essential  in  such  cases.  The  control  of 
the  property  must  be  in  the  pledgee,  as  in  other  cases.  Just 
how  can  this  property  be  delivered?  Must  it  be  by  endorse- 
ment or  by  written  assignment?  It  is  a  general  rule  that 
whatever  delivery  of  property  would  be  necessary  in  case  of 
sale  would  be  necessary  in  order  to  create  a  pledge;  and  it 
no  doubt  is  the  general  rule  that  to  pass  legal  title  to  such 
property,  as  notes  and  bills,  and  negotiable  paper  not  made 
payable  to  bearer,  it  would  be  necessary  to  indorse  the  paper 
or  make  a  written  assignment  where  indorsement  or  assign- 
ment would  be  necessary  in  case  of  sale.  That  is  to  say,  if 
the  negotiable  instrument  was  one  payable  to  order,  as  a  general 
rule  it  would  be  necessary  to  create  a  pledge  of  it  to  deliver 
the  instrument,  together  with  the  indorsement  upon  it,  which 
would  transfer  the  property  in  it.  If,  however,  the  instru- 
ment is  one  payable  to  bearer,  or  if  it  be  indorsed  in  blank, 
then  mere  delivery  alone  with  the  intention  of  pledging  it  would 
be  sufficient.  The  delivery  of  negotiable  instruments  unin- 
dorsed, where  indorsement  is  required  as  a  pledge,  vests  in  the 
pledgee  an  equitable  interest;  the  pledgee  in  such  cases  takes 
the  property  subject  to  any  prior  equities  of  third  persons  as 
against  the  pledgor.^     But  the  general  rule  seems  to  be  that  it 

1  Dickey  v.  Pocomoke  City  Nat.  be  upheld  in  equity.  A  written  as- 

Bank,  89  Md.  280,  43  Atl.  33.  Held,  signment    is    not    necessary,    but 

that  the  mere  delivery  of  a  mort-  the  mere  delivery  of  a  bond  and 

gage,    and    the    bills    thereby    se-  mortgage   as   security  is   a  valid 

cured,   without  a   written   assign-  pledge    and    will    be    so    treated, 

ment,  is  a  valid  pledge  and  will  Crane  v.  Gough,  4  Md.  334;  Kam- 


214  PLEDGE  OR  PAWN.  [§  242, 

is  necessary  that  the  negotiable  instrument  requiring  indorse- 
ment to  make  a  valid  transfer  must  be  so  indorsed  and  deliv- 
ered in  order  to  pledge  it  as  collateral  security.  Some  of  the 
courts  have  held  that  such  paper  may  be  pledged  by  mere  de- 
livery and  acceptance.  In  Louisiana  delivery  of  negotiable  se- 
curities unindorsed  seems  to  be  sufficient  to  constitute  a  valid 
pledge.  This,  however,  depends  more  or  less  upon  a  statute  of 
the  state.^  In  Georgia  it  was  held,  in  Smith  v.  Jennings,^  that 
the  pledgee  stood  in  the  place  of  the  pledgor,  and  was  protected 
against  the  pledgor  whether  a  subsequent  creditor  had  notice 
of  this  equity  or  not. 

§  242.  An  equitable  assignment. — While  it  is  necessary  to  a 
pledge  of  the  legal  title,  in  negotiable  paper  that  only  passes  by 
indorsement  or  assignment,  to  indorse  or  assign  it  to  the  pledgee, 
it  is  no  doubt  true  that  such  paper  may  by  the  payee  be  pledged 
by  mere  delivery  to  the  pledgee,  to  the  extent  that  the  pledge 
will  be  good  as  between  the  parties;  the  pledge  in  such  case 
operating  as  an  equitable  assignment  to  the  pledgee.  At  the 
common  law  the  pledgee,  under  such  circumstances,  could  main- 
tain a  suit  in  the  name  of  the  pledgor,  or  person  having  the 
legal  title,  and  now  by  reason  of  statutes  in  many  of  the  states, 
in  his  own  name.     In   Van  Riper  v.   Baldwin,*   the  plaintiff 

ena  v.  Huelbig,  23  N.  J.  Eq.  78;  Warren,  34  Me.  89,  the  property 

Galway  v.  Fullerton,  17  N.  J.  Eq.  in    negotiable    notes     may     pass 

389;    Prescott   v.   Hull,   17   Johns.  by  delivery  without  indorsement. 

284.  See  also  Billings  v.  Jane,  11  Barb. 

2  Casey  v.  Schneider,  96  U.  S.  (N.  Y.)  620.  A  negotiable  note 
496.  may  be  assigned  by  simple  deliv- 

3  74  Ga.  551.  ery,  but  the  assignment  must  be 

4  19  Hun  (N.  Y.),  344;  affirmed,  made  by  the  rightful  owner  or 
85  N.  Y.  618.  Delivery  passes  the  under  his  authority.  Davis  v. 
equitable  title  to  a  negotiable  in-  Lane,  8  N.  H.  224.  In  Thompson 
strument  payable  to  order,  and  v.  Onley,  96  N.  C.  9,  it  was  held 
the  holder  may  maintain  an  ac-  that  it  was  not  necessary  to  give 
tion  thereon  in  the  name  of  the  title  to  a  note  or  bond  to  indorse 
payee,  or  person  holding  the  legal  it  or  assign  it,  and  that  the  ques- 
title  by  statute.  However,  in  tion  of  ownership  was  a  matter  of 
most  of  the  states  the  person  fact  for  the  jury  to  decide.  That 
holding  such  equitable  title  may  the  equitable  title  passes  by  mere 
sne  in  his  own  name  because  he  delivery,  see  Freeman  v.  Perry,  22 
iB  the  real  party  in  interest,  but  Conn.  617;  Miles  v.  Reinger,  39 
these  statutes  do  not  confer  upon  Ohio  St.  499;  Foreman  v.  Beck- 
blm  the  right  of  a  bona  ^de  holder  with,  73  Ind.  515;  Beard  v.  De- 
by    indorsement.     In    Coombs    v.  dolph,  29  Wis.  136.     In  the  case 


§  243.]  PLEDGING  NEGOTIABLE  PAPERS.  215 

rented  certain  premises  to  one  Homan,  who,  by  the  express  di- 
rection of  his,  the  lessee's,  wife,  delivered  to  an  agent  of  the 
plaintiff  a  note  made  by  the  defendant,  Baldwin,  to  her  order, 
to  secure  the  payment  of  the  rent  to  become  due  under  the  lease. 
The  note  was  not  indorsed  by  the  wife  at  the  time  of  its  deliv- 
ery. The  rent  not  having  been  paid,  and  the  wife  having  re- 
fused to  indorse  the  note,  the  plaintiff  brought  this  action  to 
recover  the  amount  thereof.  Held,  "that  the  pledge  of  the 
note  operated  as  an  equitable  assignment  thereof  to  the  plaint- 
iff, and  that  he  could  sue  thereon  in  his  own  name. ' '  The  court 
say:  "Such  delivery  of  the  note  constituted  a  formal  pledge 
thereof  for  the  purposes  mentioned,  and  vested  the  equitable 
title  thereto  in  the  plaintiff  notwithstanding  the  note  was  not 
indorsed  by  the  payee." 

§  243.  Pledgee  holder  for  value. — A  rule  analogous  to  that 
which  obtains  in  the  sale  of  negotiable  paper,  as  to  bona  fide 
holders,  also  obtains  in  the  ease  of  pledging  such  paper;  and 
it  may  be  said  to  be  a  general  rule  that  where  a  hona  fide  pledgee 
of  negotiable  instruments  receives  them  in  due  course  of  busi- 
ness, and  before  maturity,  for  a  valuable  consideration  without 
notice  of  any  equities,  he  becomes  a  pledgee  for  value,  and  will 
be  protected  against  all  equities  which  may  arise  between  the 
original  parties,  and  entitled  to  all  the  protection  that  can  be 
claimed  by  a  purchaser  of  the  paper  under  such  like  circum- 
stances.^     If,  however,  there  is  that  upon  the  face  of  the  instru- 

of  Bank  of  Chadron  v.  Anderson,  lease  securities  deposited  as  col- 

48  Pac.  197,  it  was  held  that  sim-  lateral.     And  where  the  question 

pie  delivery  of  a  promissory  note  raised   was   whether   a  note   was 

without  indorsement  vests  a  con-  delivered   to   be   sold   or    as   col- 

tingent  equitable  interest.     Com-  lateral,  court  examined  facts  and 

mercial  Bank  v.  Homberger,  140  held    it    deposited    as    collateral. 

Cal.  16,  73  Pac.  625.    Pledgee  may  First  Nat.  Bank  v.  Gunhus  (Iowa), 

sue  using  pledgor's  name.    Creos  110  N.  W.  611. 
v.  Yowell,  25  Ky.  L.  598,  76  S.  W.  s  Warner  v.  Fourth  Nat.  Bank, 

127.     Pledgor  of  collateral  liable  115  N.  Y.  251;   Gates  v.  National 

for  necessary  expenses  of  collec-  Bank,   100   TJ.    S.   239;    Nelson   v. 

tion,    but    not    for    pledgee's    per-  Eaton,  26  N.  Y.  410;  Allan  v.  King, 

sonal   services.     Bank   of   Staten  4  McLean  (U.  S.),  128;  Hempner 

Island  v.   Silvie,  85  N.  Y.  S.  760,  v.  Comer,  73  Tex.  196;  Worcester 

89   App.    Div.    465;    Manson,    etc.  Nat.  Bank  v.  Cheeney,  87  111.  602; 

Co.  V.  Carey,  1  Ind.  T.  572,  45  S.  Kinney   v.    Kruse,    28    Wis.    183; 

W.    120.     A   mere    renewal    of   a  Bealle  v.  Southern  Bank,  57  Ga 

note  held  not  to  discharge  or  re-  274;    Exchange    Bank   v.    Butner, 


216 


PLEDGE  OR  PAWN. 


[§  244. 


ment  which  is  pledged  which  would  put  a  reasonably  prudent 
man  upon  inquiry,  it  is  the  duty  of  the  pledgee  to  inquire,  and 
if  he  fails  to  make  inquiry  he  will  be  held  to  have  had  notice  of 
whatever  would  have  been  discovered  had  he  made  the  investi- 
gation, and  he  cannot  under  such  circumstances  claim  the  privi- 
leges of  a  ho7ia  fide  holder  because  he  had  no  notice  of  the  equi- 
ties. The  rule  that  he  has  actual  notice  of  all  the  facts  that  an 
investigation  would  have  discovered  obtains.® 

§  244.  Whether  a  pre-existing  debt  a  sufficient  consideration 
to  constitute  a  pledgee  a  holder  for  value. — As  has  already 
been  stated,  a  pledge  of  negotiable  paper  may  be  made  to  secure 
payment  of  a  pre-existing  debt;  and  as  between  parties,  there  is 
no  doubt  that  such  a  debt  is  a  valid  consideration,  and  will 
support  such  a  pledge;  but  whether  it  is  such  a  consideration 
as  will  constitute  a  pledgee  a  holder  for  value  if  pledged  be- 


60  Ga.  654;  Duncomb  v.  New  York 
R.  Co.,  84  N.  Y.  190.  New  Hamp- 
shire seems  to  stand  alone  in  op- 
posing tlie  doctrine  that  a  pledgee, 
under  circumstances  mentioned  in 
the  text,  is  a  bona  fide  holder. 
The  holding,  however,  in  this 
state  in  some  of  the  earlier  re- 
ports has  latterly  been  more  or 
less  limited.    See  Jenness  v.  Bean, 

10  N.  H.  266;  Williams  v.  Little, 

11  N.  H.  66;  Goss  v.  Emerson,  23 
N.  H.  38;  Tucker  v.  New  Hamp- 
shire Savings  Bank,  58  N.  H.  83; 
Memphis  Bethel  v.  Bank,  101 
Tenn.  130.  When  securities 
pledged  by  one  not  the  owner 
and  advances  are  made  by  pledgee 
with  knowledge  of  that  fact,  in 
action  by  owner,  an  instruction 
that  there  is  proof  of  bad  faith 
held  proper.  Homested,  etc.  Co. 
V.  Chapman,  81  N.  Y.  S.  38,  80 
App.  Div.  556.  Held  bona  fide 
pledgee.  Lyman  v.  State  Bank,  80 
N.  Y.  S.  901.  An  extension  of 
time  granted  by  a  creditor  in  con- 
sideration of  a  pledge  of  stock  by 
debtor  as  security  for  the  debt 
makes   the    creditor   a    bona   fide 


holder  for  value.  Just  v.  State 
Savings  Bank,  132  Mich.  600,  94 
N.  W.  200.  Where  owner  has 
clothed  bailee  with  apparent  own- 
ership, whereupon  bailee  wrong- 
fully pledges  property,  mere  no- 
tice of  the  actual  ownership  by 
the  bailor  to  the  pledgee  without 
tender  of  the  debt  will  not  pre- 
vent the  sale  of  the  property. 
May  V.  Martin,  32  Tex.  Civ.  App. 
132,  73  S.  W.  840.  In  this  case 
the  owner  estopped  from  attack- 
ing validity  of  pledge.  Brady  v. 
McMorris,  73  N.  Y.  S.  532;  Chi- 
cago Title,  etc.,  Co.  v.  Brugger,  95 
111.  App.  405,  affirmed  196  111.  96, 
63  N.  B.  637;  Perth  Amboy,  etc., 
Assoc.  V.  Chapman,  178  N.  Y.  558, 
71  N.  E.  1104;  Kittler  v.  Studa- 
baker,  113  111.  342,  352.  Where 
bank  stock  pledged  and  nothing 
on  the  face  of  stock  showing  that 
bank  had  lien  on  it  for  any  debt 
owing  it,  held  pledgee  bona  fide 
holder  with  lien  superior  to  that 
of  bank.  Lyman  v.  State  Bank, 
179  N.  Y.  577,  72  N.  E.  1145. 

6  First  Nat.  Bank  v.  Broadway 
Nat.  Bank,  47  N.  Y.  S.  880. 


§   244,]  PLEDGING    NEGOTIABLE    PAPERS.  217 

fore  maturity  and  without  notice  of  any  infirmities,  whether 
under  such  circumstances  the  pledgee  will  be  protected  in  his 
holding  against  prior  equities,  authorities  are  not  harmoni- 
ous. The  solution  of  the  whole  matter  would  seem  to  rest 
upon  the  question  of  consideration.  Did  the  pledgee  pay  any- 
thing, or  do,  or  forbear  to  do,  anything?  Was  there  any  benefit 
derived  from  the  transaction  of  the  pledgor?  As  throwing 
some  light  upon  the  subject,  let  us  consider  the  nature  of  a  pre- 
existing debt.  It  means  a  debt  already  existing  at  the  time  of 
executing  the  pledge ;  not  an  indebtedness  in  any  way  connected 
with  the  transaction  or  the  pledging.  But  it  may  be  that  cer- 
tain benefits  are  derived  from  the  contract  by  the  pledgor;  as, 
for  example,  if  the  antecedent  debt  is  due  and  the  pledgee  is  in 
a  situation  where  he  might  commence  suit  upon  the  indebted- 
ness against  the  pledgor,  and  the  pledgor  under  such  circum- 
stances should  pledge  to  him  the  negotiable  paper,  and  by  means 
of  the  pledge  should  obtain  further  time  for  the  payment  of 
the  antecedent  debt;  or,  if  the  pledgee  released  security  for  the 
payment  of  his  debt,  or  the  pledgor  had  in  any  way  bettered 
his  condition,  in  such  case  there  would  be  no  doubt  but  that  the 
contract  would  rest  upon  a  valuable  consideration,  and  if  the 
negotiable  paper  was  pledged  before  maturity,  under  such  cir- 
cumstances the  pledgee  would  be  said  to  be  a  holder  for  value; 
and  if  the  pledgee  should,  by  reason  of  the  contract,  become 
the  owner  of  the  negotiable  paper,  or  if  by  reason  of  the  con- 
tract it  should  be  necessary  for  him  to  bring  an  action  upon  the 
negotiable  paper  thus  pledged,  the  courts  would  hold  that  he 
held  the  paper  free  from  infirmities,  and  that  he  was  a  holder 
for  value  and  that  it  was  not  subject  to  prior  equities.  But  if, 
on  the  contrary,  there  was  no  such  benefit  obtained  by  the 
pledgor  by  reason  of  the  pledge,  if  the  pledgee  simply  received 
the  security  for  the  antecedent  debt,  giving  nothing  in  return, 
if,  in  other  words,  there  was  no  moving  consideration  for  the 
creating  of  the  pledge  relation  no  benefit  to  the  pledgor,  in 
such  case  the  courts  have  not  been  entirely  harmonious  in  their 
holdings.  Very  many  of  the  state  courts,  notably  New  York, 
Michigan,  and  Ohio,  have  held  that  there  being  no  considera- 
tion moving  between  the  parties  the  pledgee  could  not  be  held 
to  be  a  holder  for  value;  the  theory  being,  as  we  have  already 
said,  that  the  pledgee  gives  no  consideration  for  the  pledge; 
he  surrenders  nothing;  is  simply  made  better  by  reason  of  the 


218  PLEDGE  OR  PAWN.  [§  244. 

security.  He  is  not  like  a  bona  fide  purchaser  of  negotiable 
paper  who  pays  out  his  money,  or  gives  up  some  valuable  piece 
of  property  or  security ;  on  the  contrary  the  pledgee  pays  noth- 
ing, does  nothing;  he  simply  receives  a  benefit;  and  so  many 
of  the  courts  have  held  that  such  a  pledgee  would  acquire  no 
more  title  than  the  pledgor  had  to  the  property  pledged;  that 
is,  if  the  property  had  been  fraudulently  acquired  by  the 
pledgor,  such  a  pledgee  could  not  hold  it  against  the  rightful 
owner.  In  short,  that  he  holds  it  subject  to  prior  equities,  hav- 
ing no  better  title  than  the  pledgor  had. 

In  Phoenix  Ins.  Co.  v.  Church,^  this  question  was  considered. 
In  that  case  the  defense  was  that  the  note  was  accommodation 
paper  made  for  a  specific  purpose;  that  it  was  diverted  by  the 
payee,  and  was  received  by  the  plaintiff  on  account  of  a  pre- 
existing debt  only.  The  court  found  in  substance  that  the 
note  was  executed  by  defendant  without  consideration  for  the 
accommodation  of  the  payee,  and  for  the  specific  purpose  of 
taking  up  therewith  a  prior  accommodation  note  made  by  the 
defendant;  so  it  will  be  seen  that  there  would  have  been  a 
complete  defense  to  this  note  as  between  the  maker  and  the 
payee.  In  the  brief  for  appellant  very  many  authorities  are 
cited  to  the  effect  that,  the  note  having  been  diverted  to  the 
injury  of  the  maker  and  the  plaintiff  having  paid  nothing  for  it, 
it  was  subject  to  all  the  equities  existing  against  dishonored 
paper.  The  court  in  its  opinion  say:  "It  is  the  settled  law  of 
this  state  that  prior  equities  of  antecedent  parties  to  negotiable 
paper,  transferred  in  fraud  of  their  rights,  will  prevail  against 
an  indorsee  who  has  received  it  merely  in  nominal  payment  of 
a  precedent  debt,  there  being  no  evidence  of  an  intention  to 
receive  the  paper  in  absolute  discharge  and  satisfaction  beyond 
what  may  be  inferred  from  the  ordinary  transaction  of  accept- 
ing or  receipting  it  in  payment  or  crediting  it  on  account.  The 
law  regards  the  payment  under  such  circumstances  as  condi- 
tional only,  and  the  right  of  the  creditor  to  proceed  upon  the 
original  indebtedness  after  the  maturity  of  the  paper  is  unim- 
paired." 

The  Massachusetts   courts  hold  to  a  different  doctrine.     In 

7  81  N.  Y.  218;  Day  v.  Codding-  36  N.  Y.  128;  Rosa  v.  Brotherson, 

ton,  5  Johns.  Ch.  54;  Comstock  v.  10  Wend.  85;   Weaver  v.  Harden, 

Hier,  73  N.  Y.  269;  Moore  v.  Rider,  49  N.  Y.  286. 
65  N.  Y.  438;  Lawrence  v.  Clark, 


§   244.]  PLEDGING    NEGOTIABLE    PAPERS.  219 

Spaulding  v.  Eendrick^  the  court  say:  "The  law  of  the  case  is 
settled  by  numerous  decisions.  If  a  thief  gives  stolen  money 
or  negotiable  securities,  before  their  maturity,  in  payment  of 
his  debt,  or  as  security  for  it,  to  one  who  in  good  faith  receives 
the  money  or  security  as  belonging  to  him,  the  creditor  can  hold 
the  property  as  against  the  true  owner.  As  between  the  payor 
and  the  payee  there  is  no  mistake  which  affects  the  validity  of 
the  transaction.  One  receiving  money  or  negotiable  securities 
in  payment  of  or  as  security  for  an  existing  debt  is  not  bound 
to  inquire  where  the  money  or  securities  were  obtained.  It  is 
better  that  money  or  a  negotiable  security,  passing  from  hand 
to  hand  to  one  who  rightly  receives  it  for  a  valuable  considera- 
tion, should  carry  on  its  face  its  own  credentials.^  It  has  often 
been  decided  in  this  commonwealth  that  a  pre-existing  debt  is 
a  valuable  consideration  for  a  payment  made  or  a  security 
given  on  account  of  it."^° 

In  Goodman  v.  Conkling  ^^  it  was  held  that  where  some  se- 
curity for  the  payment  of  the  pre-existing  debt  was  surrendered 
in  consideration  of  a  new  note  given  in  security  for  the  pay- 
ment of  the  debt,  that  the  plaintiff  became  a  bona  fide  holder 
for  value,  and  that  this  consideration  was  sufficient  to  exclude 
prior  equities.  In  the  brief  of  counsel  authorities  wiU  be  found 
cited  sustaining  this  proposition. 

In  Mayer  et  al.  v.  Heidelhack  et  al.,^^  it  was  held  ''that  the 
actual  and  absolute  extinguishing  of  the  debt  in  consideration 
of  the  transfer  of  negotiable  paper  is  sufficient  to  render  the 
transferee  a  holder  for  value  within  the  rules  protecting  such 
a  holder  against  prior  equities."  Among  other  things  the 
court  say:  "The  respondents  rely  upon  two  propositions  which 
have  thus   far   prevailed:   (1)   That   the   actual   payment   and 

«  172  Mass.  71.  Chester  &  Milton  Bank,  10  Cush. 

»  Merchants'  Ins.  Co.  v.  Abbott,  488. 

131  Mass.  397;   Lime  Rock  Bank  lo  Blanchard  v.  Stevens,  3  Cush. 

V.  Plumpton,  17  Pick.  159;  Green-  162;    Fisher  v.   Fisher,   98    Mass. 

field  School  District  v.  First  Nat.  303;    Goodwin    v.    Massachusetts 

Bank,  102  Mass.  174;  Thatcher  v.  Loan  &  Trust  Co.,  152  Mass.  189; 

Pray,    113    Mass.   291;    Jaques    v.  Merchants'   Nat.   Bank  v.   Haver- 

Marquand,  6  Cowen,  497;   Dunlap  hill  Iron  Works,   159   Mass.   158; 

V.  Limes,  49  Iowa,  177.     See  also  National  Revere  Bank  v.  Morse,^ 

Mason    v.    Waite,    17    Mass.    560,  163  Mass.  383. 

563;   Worcester  Co.  Bank  v.  Dor-  n  85  N.  Y.  21. 

12 123  N.  Y.  332. 


220  PLEDGE  OR  PAWN.  [§  244. 

absolute  discharge  of  an  antecedent  debt  is  a  valuable  considera- 
tion for  the  transfer  of  commercial  paper,  and  cuts  off  prior 
equities.  ...  I  have  no  doubt  as  to  the  soundness  of  the 
first  proposition.  It  was  explicitly  conceded  in  Coddington  v. 
Bay,^^  which  originated  the  difference  between  the  courts  of 
this  state  and  the  concurring  views  of  the  federal  court  and 
those  of  England.  While  it  was  in  that  case  ruled  that  the 
transfer  of  negotiable  paper  as  collateral  security  merely  for 
an  antecedent  debt  did  not  make  the  creditor  a  holder  for  value 
within  the  rule  cutting  off  prior  equities,  it  was  yet  asserted 
that  such  result  followed,  where,  among  other  things,  some 
existing  debt  was  satisfied  thereby.  And  that  I  think,  was  a 
natural  and  logical  conclusion  from  the  reasoning  upon  which 
the  decision  rested.  The  argument  was  that  the  holder  of  the 
paper  merely  as  collateral  lost  nothing  by  its  failure,  since  his 
debt  all  the  time  remained,  his  original  position  was  unchanged, 
and  he  had  simply  failed  to  get  an  added  security,  himself 
parting  with  nothing.  It  is  apparent  that  the  reasoning  fails, 
whenever,  as  a  result  of  the  nev/  contract,  the  original  debt 
has  been  actually  extinguished,  when  the  paper  received  has 
been  both  transferred  and  accepted  as  payment,  and  the  debt  has 
been  discharged  within  and  by  force  of  the  acts  and  concurring 
intention  of  both  parties.  And  so  we  have  steadily  decided." 
An  early  case  in  the  United  States  supreme  court  decided  by 
Judge  Story  lays  down  a  different  doctrine.  In  the  case  of 
Swift  V.  Tyson '^'^  the  court  say:  "It  becomes  necessary  for  us, 
therefore,  upon  the  present  occasion,  to  express  our  own  opinion 
of  the  true  result  of  the  commercial  law  upon  the  question 
now  before  us.  And  we  have  no  hesitation  in  saying  that  a 
pre-existing  debt  does  constitute  a  valuable  consideration  in 
the  sense  of  the  general  rule  already  stated,  as  applicable  to 
negotiable  instruments.  Assuming  it  to  be  true  (which,  how- 
ever, may  well  admit  of  some  doubt  from  the  generality  of  the 
language)  that  the  holder  of  a  negotiable  instrument  is  un- 
affected with  the  equities  between  the  antecedent  parties  of 
which  he  has  no  notice  only  where  he  receives  it  in  the  usual 
course  of  trade  and  business  for  a  valuable  consideration,  before 
it  becomes  due,  we  are  prepared  to  say  that  receiving  it  in 

13  5  Johns.  57.  cited  in  26  U.  S.  L.  Ed.  1039,  An- 

14  16  Pet.  1;  14  U.  S.  (Curtis)  notations  102  U.  S.  — ,  also  Anno- 
166.  This  case  is  followed  by  tation  U.  S.  R.  38  L.  Ed.  133,  An- 
Railroad  Co.  v.  National  Bank,  102  notation,  16  Pet.  1. 

U.    S.    14.      See  number   of   cases 


§   244.]  PLEDGING    NEGOTIABLE    PAPERS.  221 

payment  of  or  as  security  for  a  pre-existing  debt  is  according 
to  the  known  usual  course  of  trade  and  business.  And  why^ 
upon  principle,  should  not  a  pre-existing  debt  be  deemed  such 
a  valuable  consideration?  It  is  for  the  benefit  and  convenience 
of  the  commercial  world  to  give  as  wide  an  extent  as  prac- 
ticable to  the  credit  and  circulation  of  negotiable  paper,  that 
it  may  pass  not  only  as  security  for  new  purchases  and  ad- 
vances, made  upon  the  transfer  thereof,  but  also  in  payment  of 
and  as  security  for  pre-existing  debts.  The  creditor  is  thereby 
enabled  to  realize  or  secure  his  debt,  and  thus  may  safely  give 
a  prolonged  credit  or  forbear  from  taking  any  legal  steps  to  en- 
force his  rights.  The  debtor  also  has  the  advantage  of  making 
his  negotiable  securities  of  equivalent  value  to  cash.  But  es- 
tablish the  opposite  conclusion,  that  negotiable  paper  cannot  be 
applied  in  payment  of  or  as  security  for  pre-existing  debts, 
without  letting  in  all  the  equities  between  the  original  and  ante- 
cedent parties,  and  the  value  and  circulation  of  such  securities 
must  be  essentially  diminished,  and  the  debtor  driven  to  the 
embarrassment  of  making  a  sale  thereof,  often  at  a  ruinous 
discount  to  some  third  person,  and  then  by  circuity  to  apply  the 
proceeds  to  the  payment  of  his  debts.  "What,  indeed,  upon  such 
a  doctrine,  would  become  of  that  large  class  of  cases  where  new 
notes  are  given  by  the  same  or  by  other  parties,  by  way  of  re- 
newal or  security,  to  banks  in  lieu  of  old  securities  discounted 
by  them  which  have  arrived  at  maturity?  Probably  more  than 
one-half  of  all  bank  transactions  in  our  country,  as  well  as 
those  of  other  countries,  are  of  this  nature.  The  doctrine  would 
strike  a  fatal  blow  at  all  discounts  of  negotiable  securities  for 
pre-existing  debts.  "^^ 

15  The  Michigan  cases  upon  pre-  a  chattel  mortgage  was  attacked 
existing  debt  being  an  insufficient  upon  the  grounds  that  the  con- 
consideration,  will  be  found  col-  sideration  was  a  pre-existing  debt, 
lected  and  discussed  in  Schloss  v.  but  held  good  because  other  and 
Feltus,  103  Mich.  525,  3G  L.  R.  A.  further  valid  consideration  sup- 
161,  where  it  was  held  that  "a  ported  the  mortgage.  Kop  Bros, 
naked  pre-existing  debt  is  not  Co.  v.  Smith,  137  Mich.  28,  107 
such  a  consideration  or  payment  N.  W.  79,  where  it  was  held  that 
for  the  transfer  of  a  stock  of  one  who  takes  goods  in  payment 
goods  as  will  defeat  replevin  by  of  a  past  due  indebtedness  will 
the  original  vendor,  who  sets  up  not  be  protected  against  a  defect 
fraud  in  the  purchase  of  the  goods  in  the  title  of  his  vendor  on  the 
from  them.  This  case  was  cited  ground  that  he  is  a  bona  fide  pur- 
in  the  case  of  Hees  v.  Cury,  115  chaser. 
Mich.  654,  where  the  validity  of 


CHAPTER  III 


NON-NEGOTIABLE   AND   QUASI-NEGOTIABLE   INSTRUMENTS. 


§  245. 


246. 


247. 


248. 
249. 
250. 


251. 


252. 


253. 

254. 
255. 

256. 

257. 

258. 

259. 


The  nature  and  effect  of 
such  instruments. 

The  pledging  of  corporate 
stock. 

What  deemed  sufficient 
delivery  by  pledgor  to 
pledgee. 

Transfer  in  blank. 

Legal  or  equitable  title. 

How  affected  by  charter 
and  by-laws  of  the  com- 
pany. 

The  pledgee  protected  as 
against  creditors. 

The  pledgee  of  stock  by 
indorsement  may  trans- 
fer the  title. 

Bills  of  lading  subject  of 
pledge. 

Delivery  by  the  pledgor. 

Mere  delivery  of  the  bill 
sufficient. 

Bill  of  lading  to  consignee 
with  draft  attached. 

A  bill  of  lading,  how  far 
negotiable. 

Who  are  bona  fide  holders 
of  bills  of  lading. 

Rights  of  bona  fide  hold- 
era. 


§  260. 


261. 


262. 


263. 


264. 


265. 

266. 

267. 
268. 
269. 

270. 

271. 

272. 

273. 


Bona  fide  holder  from 
agent  of  owner,  or  one 
having  apparent  title. 

The  warehouse  receipt  as 
collateral. 

Delivery  of  the  receipt  re- 
quired— Indorsement  in 
blank. 

Pledge    created    by 

mere  delivery  of  receipt. 

Statutes  of  states,  with 
reference  to  pledgee  of 
warehouse  receipt. 

If  the  receipt  is  made 

to  bearer. 

Insurance  policies  as  col- 
lateral. 

Delivery  a  requisite. 

How  delivered. 

By  indorsement  in  blank 

and  delivery. 
Notes  and  mortgages,  and 

bonds  and  mortgages. 
Mere  delivery  as  a  pledge. 
Full,  complete  assignment 

and  transfer. 
Pledge  distinguished  from 

chattel  mortgage. 


§  245.  The  nature  and  effect  of  such  instruments. — Instru- 
ments that  are  non-negotiable,  that  are  simply  the  evidence  of 
the  ownership  of  certain  interests  or  property,  may  be  the  sub- 
ject of  a  pledge.  While  these  instruments  cannot  be  said  to  be 
the  property  itself,  they  are  the  indicia  of  ownership,  the  muni- 
ments of  title  known  and  recognized  in  the  business  world, 
bought,  sold  and  pledged  as  property  for  the  reason  that  they 


§   246.]  NON-NEGOTIABLE  AND  QUASI-NEGOTIABLE.  223 

represent  property,  and  by  their  transfer  the  property  they 
represent  is  transferred.  We  cannot  discuss  the  pledging  of 
every  class  of  non-negotiable  instruments  known  and  recognized 
in  business,  as  it  would  consume  too  much  space;  only  those 
most  commonly  known  and  used  can  be  noticed.  Among  these 
may  be  mentioned  stocks  of  corporations,  bills  of  lading,  ware- 
house receipts,  insurance  policies,  mortgages  and  savings  bank 
books. 

§  246.  The  pledging  of  corporate  stock. — Because  of  the  rule 
that  a  valid  pledge  requires  a  delivery  of  the  property  by  the 
pledgor  to  the  pledgee  and  an  acceptance  and  continued  posses- 
sion by  the  pledgee,  it  has  not  always  been  thought  that  stock 
in  a  corporation  could  be  the  subject  of  a  pledge;  but  opinions 
upon  that  subject  have  changed,  and  there  is  no  longer  any 
question  as  to  such  property  being  the  subject  of  a  pledge.  The 
certificate  of  stock,  of  course,  is  not  the  property  itself,  but  it 
represents  the  property;  and  the  holder  of  the  certificate,  by 
reason  of  it,  is  the  holder  and  possessor  of  the  certain  property 
interests  in  the  property  of  the  corporation  which  the  certificate 
represents,  whether  it  be  personalty  or  realty;  and  those  in- 
terests so  represented  by  the  stock  certificate  may  be  purchased, 
sold  and  transferred  by  the  transfer  of  the  certificate  of  stock. 
This  being  true,  it  certainly  follows  that  corporate  stock  may  be 
the  subject  of  a  pledge. 

The  court  in  Brewster  v.  Hartley'^  say:  "A  delivery  to  the 
pledgee  of  the  thing  pledged  is  essential  to  the  contract,  and 
until  that  act  is  performed  the  special  property  that  the  bailee 
is  entitled  to  hold  does  not  vest  in  him.  In  respect  to  most 
kinds  of  property,  a  delivery  of  the  property  to  the  pledgee, 
without  any  written  transfer  of  the  title,  is  sufficient  to  pass 
the  requisite  special  property.  Incorporeal  property,  being  in- 
capable of  manual  delivery,  cannot  be  pledged  without  a  writ- 
ten transfer  of  the  title.  Debts,  negotiable  instruments,  stocks 
in  incorporated  companies,  and  choses  in  action  generally,  are 
pledged  in  that  mode.  Such  transfer  of  the  title  performs  the 
same  office  that  the  delivery  of  possession  does  in  case  of  a 
pledge  of  corporeal  property.     The  transfer  of  the  title,  like 

1  37   Cal.   15-25.     In   "Wilson   v.  is  nothing  more  than  a  legal  right 

Little,  2  N.  Y.  443,  the  court  say:  to    the    restoration    of    the    thing 

"The  general  property  which  the  pledged  on  payment  of  the  debt." 
pledgor  is  said  usually  to  retain 


224  PLEDGE  OK  PAWN.  [§   248. 

the  delivery  of  possession,  constitutes  the  evidence  of  the 
pledgee's  right  of  property  in  the  thing  pledged.  The  transfer 
in  writing  of  shares  of  stock  not  only  does  not  prove  that  the 
transaction  is  not  a  pledge,  but  the  stock,  unless  it  is  expressly 
made  assignable  by  the  delivery  of  the  certificates,  cannot  be 
pledged  in  any  other  manner." 

§  247.  What  deemed  a  sufficient  delivery  by  pledgor  to 
pledgee. — Delivery  and  possession  of  the  pledged  property  is  as 
much  of  an  essential  when  stock  in  a  corporation  is  the  subject 
of  the  pledge  as  in  any  other  case.  If  the  stock  is  regularly 
transferred  by  indorsement  and  upon  the  books  of  the  com- 
pany, and  is  held  by  the  pledgee  as  a  pledge,  there  can  be  no 
doubt  of  the  sufficiency  of  such  a  transfer  and  delivery;  and 
when  so  held  in  good  faith  by  the  pledgee  as  security  for  the 
payment  of  a  debt,  or  the  performance  of  an  obligation,  the 
law  will  protect  the  pledgee's  holding  and  security,  not  only 
as  against  the  pledgor,  but  also  against  all  persons  claiming 
from  or  under  him.  It  is  not,  however,  necessary  that  the  stock 
should  be  transferred  on  the  books  of  the  company  except  under 
certain  circumstances,  to  protect  the  pledgee  against  creditors 
or  subsequent  purchasers  in  good  faith,  because  the  certificate 
indorsed  in  blank  and  delivered  to  the  pledgee  would  be  prima 
facie  evidence  of  ownership,  and  a  presentation  to  the  proper 
officers  of  the  company  of  a  certificate  so  indorsed  would  en- 
title the  holder  to  have  the  stock  transferred  to  him.  The  in- 
dorsement in  blank  of  the  certificate  of  stock  by  the  owner  au- 
thorizes the  person  to  whom  he  delivers  it  with  intention  to 
transfer  it  or  pledge  it,  or  his  assigns,  whether  pledgee  or 
vendee,  to  write  over  the  signature  of  the  owner  indorsed  upon 
the  stock  certificate  a  full  assignment  of  the  stock,  with  direc- 
tions to  transfer  the  same  upon  the  books  of  the  company.^ 

§  248. Transfer  in  blank. — As  we  have  seen,  stock  cer- 
tificates may  be  transferred  by  indorsement  in  blank  and  de- 
livery of  the  certificate.  This  manner  of  transfer,  no  doubt, 
grows  out  of  the  demand  that  business  usage  has  made.     Espe- 

2  German  Union  Ass'n  Bldg.   v.  up  by  the  holder  by  writing  an  as- 

Sendmeyer,    50    Pa.    St.    67;     Mt.  signment  and  a  power  of  attorney 

Holly,  etc.  Turnpike  Co.  v.  Ferree,  over  the  signature  indorsed.  Kort- 

17  N.  J.  Eq.  117.    A  certificate  of  right    v.     Commercial    Bank,    20 

stock  is  transferable  by  a  blank  Wend.   91. 
indorsement  which  may  be  filled 


§   248.]  NON-NEGOTIABLE  AND  QUASI-NEGOTIABLE.  225 

cially  is  this  manner  of  transfer  and  delivery  applicable  to  the 
subject  under  consideration.  It  is  not  the  desire  of  the  pledgor 
to  transfer  his  stock  absolutely  upon  the  books  of  the  com- 
pany; he  simply  desires  to  make  such  a  delivery  of  the  stock 
as  will  be  security  in  the  hands  of  the  pledgee  for  the  payment 
of  the  debt  or  the  performance  of  the  undertaking.  And  so  it 
has  become  to  be  a  well-settled  usage  recognized  and  practiced, 
to  execute  a  pledge  of  stock  as  security  by  delivery  of  the  cer- 
tificate of  shares  indorsed  in  blank. 

In  the  case  of  Kortright  v.  Commercial  Bank  of  Buffalo,^ 
it  appeared  that  by  the  by-laws  of  the  company  the  stock  was 
transferable  only  upon  the  books  of  the  company;  that  the 
owner  of  certain  shares  of  bank  stock  thus  transferable  sent 
his  certificate  with  a  blank  power  of  attorney  under  seal,  and 
his  own  promissory  note,  to  an  agent  to  be  used  in  obtaining  a 
loan.  The  loan  was  subsequently  obtained  upon  these  securi- 
ties by  the  agent,  who  absconded  with  the  money.  The  pledgee 
filled  up  the  blank  transfer  and  power  of  attorney  over  the 
signature  of  the  owner,  and  demanded  a  transfer  of  the  shares 
to  himself  upon  the  books  of  the  bank,  which  the  bank  refused 
to  allow.  In  a  suit  by  the  pledgee  against  the  bank  upon  such 
refusal,  the  pledgee  was  held  to  be  entitled  to  recover.  Chief 
Justice  Nelson,  speaking  for  the  court  in  denying  a  motion  for 
a  new  trial,  said  that  the  filling  up  of  the  blank  transfer  over 
the  signature  of  the  owner  indorsed  upon  the  certificate  and 
the  power  of  attorney  was  in  ''strict  conformity  with  the  uni- 
versal usage  of  dealers  in  the  negotiation  and  transfer  of  stock 
according  to  the  proof  in  the  case.  Even  without  the  aid  of 
this  usage  there  could  be  no  great  difficulty  in  upholding  the 
assignment.  The  execution  in  blank  must  have  been  for  the 
express  purpose  of  enabling  the  holder,  whoever  he  might  be, 
to  fill  it  up.  If  intended  to  have  been  filled  up  in  the  name  of 
the  first  transferee,  there  would  have  been  no  necessity  for  its 
execution  in  blank;  the  owner  might  have  completed  the  in- 
strument. The  usage  however  is  well  established,  and  was 
fully  understood  by  the  owner,  as  he  made  the  transfer  in  con- 
formity to  it,  and  he,  or  those  setting  up  a  claim  under  him, 
should  not  be  permitted  to  deny  its  validity.  The  filling  up 
is  but  the  execution  of  an  authority  clearly  conveyed  to  the 

3  20  Wend.  91. 
15 


226  PLEDGE  OR  PAWN.  [§   249. 

holder;  is  lawful  in  itself,  and  convenient  to  all  parties,  as  it 
avoids  the  necessity  of  needlessly  multiplying  transfers  upon 
the  books." 

§  249.  Legal  or  equitable  title. — There  has  been  some  dis- 
agreement among  the  authorities  as  to  what  constitutes  a  legal 
title  to  corporate  stock,  and  what  establishes  merely  an  equi- 
table title.  It  can,  however,  only  become  important  when  a 
pledgee,  violating  good  faith,  undertakes  to  transfer  the  prop- 
erty pledged.  To  possess  the  legal  title  to  corporate  stock,  one 
must  be  the  hona  fide  owner  and  possessor  in  his  own  name  of 
the  stock,  issued  by  the  proper  officers  of  the  corporation,  and 
so  appearing  on  the  books  of  the  company.  Such  an  ownership 
as  would  entitle  him  pursuant  to  the  by-laws  and  regulations 
of  the  company  to  participate  as  a  stockholder  and  vote  the 
stock  at  a  stockholders'  meeting;  while  one  may  be  said  to  have 
an  equitable  title  who  owns  stock  which  does  not  appear  in  his 
own  name  on  the  books  of  the  company,  and  where  something 
is  necessary  to  be  done  before  he  can  participate  in  all  the 
privileges  of  a  stockholder,  or  vote  the  stock  in  a  stockholders' 
meeting.  As,  for  example,  where  one  holds  stock  by  a  certifi- 
cate indorsed  by  the  legal  owner  in  blank,  which  certificate,  so 
indorsed,  may  be  presented  to  the  officers  of  the  company,  can- 
celled and  a  new  certificate  issued  for  the  stock  it  represents 
direct  to  him  and  in  his  name. 

In  Mt.  Holly,  etc.,  Turnpike  Co.  v.  Ferree  et  al.*  the  court 
say:  ''The  certificate  of  stock,  accompanied  by  the  power  of  at- 
torney authorizing  the  transfer  of  the  stock  to  any  person,  is 
prima  facie  evidence  of  equitable  ownership  in  the  holder,  and 
renders  the  stock  transferable  by  the  delivery  of  the  certificate, 

*  17  N.  J.  Eq.  117.  In  this  case  vening  equity,  his  title  as  such 
the  court  say:  "Considerations  of  owner  cannot  be  impeached." 
commercial  convenience  and  pub-  Bank  of  America  v.  McNeil,  10 
lie  policy  suggest  the  true  rule  Bush  (Ky.),  54.  In  this  case  the 
upon  this  subject.  Where  a  cer-  court  speaks  of  an  assignment  of 
tificate  of  shares  of  stock  in  an  the  certificate  with  power  to 
incorporated  company,  accompa-  transfer,  where  the  corporation's 
nied  by  an  irrevocable  power  of  charter  provides  for  a  transfer 
attorney  from  the  owner  to  trans-  upon  its  books,  as  a  symbolical 
fer  them,  either  filled  up  or  in  delivery  of  the  stock,  effectual 
blank,  are  in  the  hands  of  the  against  persons  having  actual  no- 
third  party,  he  is  presumptively  tice  of  it.  State  Ins.  Co.  v.  Sax, 
the  equitable  owner  of  the  shares,  2  Tenn.  Ch.  507;  Bruce  v.  Smith, 
and  if  he  has  given  value  for  44  Ind.  1,  5. 
them  without  notice  of  any  inter- 


§   249.]  NON-NEGOTIABLE  AND  QUASI-NEGOTIABLE.  227 

and  when  the  party  in  whose  hands  the  certificate  is  found  is 
shown  to  be  a  holder  for  value  without  notice  of  any  interven- 
ing equity,  his  title  as  such  owner  cannot  be  impeached.  The 
holder  of  the  certificate  may  insert  his  own  name  in  the  power 
of  attorney  and  execute  the  power  and  thus  obtain  the  legal  title 
to  the  stock  whenever  the  loan  for  which  it  was  hypothecated 
becomes  due,  or  whenever  by  the  terms  of  his  contract  he  be- 
comes entitled  to  the  stock;  and  such  a  power  is  not  limited  to 
the  person  to  whom  it  was  first  delivered,  but  inures  to  the 
benefit  of  each  bona  fide  holder  into  whose  hands  the  certificate 
and  power  may  pass;  and  the  title  of  the  holder  is  in  no  wise 
affected  by  a  provision  in  the  charter  or  by-laws  of  the  cor- 
poration that  the  stock  is  transferable  only  on  the  books  of  the 
corporation;  such  provision  is  intended  merely  for  the  protec- 
tion and  benefit  of  the  corporation.  These  principles  have  been 
repeatedly  recognized  by  the  courts  of  other  states,  and  in  com- 
mercial cities,  and  constitute  the  basis  of  daily  business  trans- 
action. ' ' 

Somewhat  different  from  this  case  and  generally  supported 
by  the  weight  of  authority,  is  the  case  of  Cushman  v.  Thayer 
Mfg.  Co.^  the  action  was  brought  to  compel  the  defendant  to 
transfer  upon  its  books  certain  shares  of  stock  to  the  plaintiff, 
and  issue  a  new  certificate  for  the  same  to  her.  The  court,  in 
its  opinion,  say:  "A  court  of  equity  will  enforce  a  specific  per- 
formance of  a  contract  for  the  sale  of  real  estate,  and  compel 
the  execution  of  a  deed  by  the  vendor  to  the  vendee,  although 
an  action  at  law  may  be  brought  to  recover  damages  for  the 
breach  of  the  contract.  Such  a  case  bears  a  striking  analogy 
to  the  one  now  presented,  and  the  same  principle  is  manifestly 
applicable  where  the  remedy  at  law  is  inadequate  to  furnish  the 
proper  relief.  That  an  equitable  action  will  lie  in  such  a  case 
has  been  distinctly  recognized  in  a  number  of  the  adjudicated 
cases  in  this  state"  (citing  authorities).  And  again  the  court 
say:  "The  delivery  of  the  certificates,  as  between  the  owner 
and  assignee,  with  the  assignment  and  power  indorsed,  passes 
the  entire  legal  and  equitable  title  in  the  stock,  subject  only  to 
such  liens  or  claims  as  the  corporation  may  have  upon  it.^  Any 
act  suffered  by  the  corporation  that  invested  a  third  party  with 
the  ownership  of  the  shares,  without  due  production  and  sur- 

5  76  N.  Y.  365.  N.  Y.  325;   N.  Y.  &  N.  H.  R.  Co. 

6  McNeil  V.  Tenth  Nat.  Bank,  46      v.  Schuyler,  34  id.  30,  80. 


228  PLEDGE  OR  PAWN.  [§    250. 

render  of  the  certificate,  rendered  it  liable  to  the  owner;  and 
it  was  its  duty  to  resist  any  transfer  on  the  books  without  such 
production  and  surrender."^  But  for  the  purposes  of  our  dis- 
cussion it  is  not  material  whether  the  title  created  is  equitable 
or  legal,  for  it  is  well  settled  that  delivery  of  stock,  indorsed  in 
any  of  the  ways  mentioned,  will  support  a  pledge ;  that  between 
the  parties  such  a  delivery  and  indorsement  w^ill  transfer  the 
title,  and  to  that  end  it  is  not  necessary  that  there  should  be  a 
transfer  upon  the  books  of  the  company.  In  Johnston  v. 
Laflin  ®  the  court  held  that,  as  between  the  parties,  the  title  to 
shares  of  the  capital  stock  of  a  national  bank  passes  when  the 
owner  delivers  his  stock  certificate  to  the  purchaser  with  au- 
thority to  him,  or  any  one  whom  he  may  name,  to  transfer 
them  on  the  books  of  the  bank. 

§  250.  How  affected  by  the  charter  and  by-laws  of  the  com- 
pany.— It  cannot  be  said  that  a  by-law  of  a  company  which  re- 
quires that  the  stock  shall  be  transferred  upon  its  books,  or  a 
charter  of  a  company  prescribing  the  mode  in  which  the  stock 
shall  be  transferred,  are  unimportant.  There  is  no  doubt  but 
that  this  regulates  the  respective  rights  of  the  corporation  and 
the  individual  stockholders,  and  it  is  held  that  a  holder  of  a 
certificate  of  stock  indorsed  in  blank  cannot  assert  a  legal  title 
against  the  corporation  itself  without  such  a  transfer  upon  its 
books.  ^  As  we  have  seen,  this  does  not  affect  the  title  to  the 
stock  as  between  the  owner  and  the  pledgee,  or  the  holder  by 
indorsement  in  blank;  it  is  simply  a  regulation  which  the  com- 
pany may  insist  upon  being  carried  out  by  its  stockholders. 
The  company,  however,  could  not  legally  refuse,  upon  presenta- 
tion of  such  a  certificate  duly  indorsed,  to  transfer  the  stock, 
and  if  it  should  refuse  it  could  be  compelled  to  make  the  trans- 
fer upon  its  books. 

T  Smith  V.  Am.  Coal  Co.,  7  Lans.  217;    Carroll    v.    Mullanphy    Sav. 
317;    Leitch    v.    Wells,    48    N.    Y.  Bank,   8  Mo.  App.   249;    Johnston 
585;    Grymes   v.   Hone,    49    N.    Y.  v.  Underhill,  52  N.  Y.  203. 
17;  Holbrook  v.  N.  J.  Zinc  Co.,  57  s  103  U.  S.  800. 
N.   Y.   623.      In  this   case   it  was  9  Beecher  v.  Wells  Flouring  Mill 
held  that  "one  who  takes  an  as-  Co.,    1    Fed.    Rep.    276;    Laing    v. 
signment  of  a  stock  certificate  as  Burley,  101  111.  551;  Oatis  v  Gard- 
between  him  and  the  transferrer  ner,  105  III.  436;  People  y.  Robin- 
takes  the   whole  title,  both  legal  son,  64  Cal.  373. 
and  equitable."     Cecil  Nat.  Bank 
V.   Watsontown   Bank,   105   U.   S. 


§    251.]  NON-NEGOTIABLE  AND  QUASI-NEGOTIABLE,  229 

In  Smith  V.  Crescent  City  Live  Stock  Co}^  the  court  say: 
"The  by-laws  which  require  transfers  of  stock  to  be  recorded  on 
the  books  of  the  corporation  regulate  merely  the  respective 
rights  of  the  corporation  and  the  individual  stockholders;  no 
one  can  claim  to  be  a  stockliolder  and  to  exercise  the  rights  of  a 
corporator  in  virtue  of  a  sale  of  stock  to  him  until  the  corpora- 
tion has  taken  cognizance  of  the  sale  and  by  transfer  on  its 
books  has  substituted  the  purchaser  for  the  seller.  Whether 
one  has  acquired  the  character  and  the  rights  of  a  corporator 
is  a  question  to  be  determined  by  the  laws  of  the  corporation. 
Whether  a  purchaser  has  acquired  ...  a  good  and  perfect 
title  to  any  property,  tangible  or  intangible,  is  a  question  to  be 
solved  by  the  laws  of  the  state,  applicable  to  the  sale  and 
transfer  of  such  objects." 

As  between  the  stockholder  and  the  corporation,  the  records 
of  the  corporation  furnish  the  evidence  of  their  relation,  and 
in  the  case  of  People  v.  Eohinson  ^^  it  was  held  that  "a  transfer 
not  entered  on  the  books  of  the  company  has  no  validity  out- 
side of  the  parties  to  such  transfer.  If  not,  could  it  affect  the 
validity  of  an  election  at  which  trustees  of  the  company  were 
elected?  If  so,  would  not  a  transfer,  although  not  entered  on 
the  books  of  the  company,  be  valid  outside  of  the  parties  to 
such  transfer?  The  construction  which  we  feel  compelled  to 
give  to  this  clause  is,  that  a  transfer  of  stock,  until  entered 
upon  the  books  of  the  company,  confers  on  the  transferee,  as 
between  himself  and  the  company,  no  right  beyond  that  of 
having  such  transfer  properly  entered.  Until  that  is  done,  or 
demanded  to  be  done,  the  person  in  whose  name  the  stock  is  en- 
tered on  the  books  of  the  company,  is  as  between  himself  and 
the  company,  the  owner  to  all  intents  and  purposes,  and  par- 
ticularly for  the  purpose  of  an  election. ' '  ^^ 

§  251.  The  pledgee  protected  as  against  creditors. — At  com- 
mon law  the  delivery  of  the  certificate  of  stock,  with  the  power 
to  transfer  on  the  books  of  the  company,  is  a  sufficient  delivery, 
and,  when  there  is  no  statute  to  the  contrary,  such  a  transfer 
of  stock  will  carry  the  entire  title  as  against  outside  equities 

10  30  La.   1378-82;    Litner's  Ap-  Gilbert  v.  Manufacturing  Iron  Co., 

peal,  82  Pa.  St.  301.  11  Wend.  627;  Bank  of  Buffalo  v. 

1164  Cal.  373.  Kortright,  22  Wond.  348;   State  of 

12  State  V.  Ferris,  42  Conn.  560;  Nevada  v.  Pettineli,  10  Nev.  141. 

Hoppin    V.    Buffum,    9    R.    I.    513; 


230  PLEDGE   OR  PAWN.  [§    251. 

and  creditors  of  the  pledgor.^^  In  many  of  tlie  states,  how- 
ever, there  are  statutes  expressly  providing  that  such  transfer 
shall  not  be  good  against  creditors  unless  it  is  transferred  upon 
the  books  of  the  company.  In  such  states  the  courts,  following 
the  statutes,  have  held  that  in  order  that  a  pledgee  be  protected 
against  the  creditors  of  the  pledgor  it  is  necessary  that  the 
stock  delivered  to  him  in  pledge  shall  be  transferred  upon  the 
corporate  books. 

A  very  full  discussion  may  be  found  in  the  case  of  Scott  v. 
Pequonnoch  Nat.  Bank}^  The  stock  in  this  case  (bank  stock) 
had  been  sold  and  transferred  by  indorsement  and  written  as- 
signment and  power  of  attorney,  but  had  not  been  transferred 
upon  the  books  of  the  company ;  it  was  levied  upon  by  a  creditor 
of  the  transferrer;  the  transferee  brought  an  action  at  law  to 
recover  damages  from  the  defendant  corporation  for  refusal  to 
allow  a  transfer  upon  its  books.  The  court  say,  among  other 
things:  "In  the  absence  of  a  statute  or  of  a  provision  in  the 
charter,  or  of  a  by-law  passed  in  pursuance  of  authority  con- 
ferred by  the  charter,  prescribing  the  exclusive  manner  in 
which  the  stock  of  a  corporation  shall  be  transferred,  the  stock 
owner  has  a  right  to  transfer  such  property  to  a  purchaser  by 
the  delivery  of  the  stock  certificate  with  a  written  assignment 
thereof.  The  title  of  a  hona  fide  purchaser  to  whom  such  cer- 
tificate and  assignment  have  been  delivered  will  not  be  divested 
by  the  subsequent  attachment  of  the  stock  at  the  suit  of  the 
creditor  of  the  vendor.  In  some  of  the  states  statutes  have 
been  passed  or  provisions  have  been  inserted  in  the  charters 
of  the  corporations,  prescribing,  either  expressly  or  by  implica- 
tion, an  exclusive  method  of  transfer.  .  .  .  The  Connecticut 
decisions,  especially  the  earlier  ones,  which  were  made  at  a 
time  when  the  rights  of  attaching  creditors  were  strongly 
favored,  were  to  the  effect  that  'in  cases  where  the  legislature 
in  the  act  of  incorporation  either  prescribe  the  mode  of  trans- 
ferring the  stock,  or  authorize  the  company  to  do  it  in  their 

13  Boston  Music  Hall  Ass'n  v.  express  provision  of  statute,  or  of 
Cory,  129  Mass.  435.  In  this  case  the  charter  of  the  corporation,  re- 
it  was  held  a  sale  of  stock  in  a  quiring  such  transfer  to  be  made, 
corporation  is  valid  against  a  sub-  Sergeant  v.  Franklyn  Ins.  Co.,  8 
sequent  attached  creditor  of  the  Pick.  (Mass.)  90;  Fisher  v.  Essex 
seller,  although  no  transfer  of  the  Bank,  5  Gray  (Mass),  373. 
stock  is  made  on  the  books  of  the  i*  15  Fed.  494. 
corporation,  in  the  absence  of  an 


§    251.]  NON-NEGOTIABLE  AND  QUASI-NEGOTIABLE.  231 

by-laws,  and  the  company  do  in  their  by-laws  prescribe  a  mode 
as  the  only  one  to  be  pursued,  that  mode  must  be  followed,  or 
the  legal  title  will  not  pass  by  an  assignment  which  would  be 
good  at  common  law  had  no  particular  and  exclusive  mode  of 
transfer  been  prescribed. '  "  ^^ 

In  Fisher  v.  Essex  Bank  ^^  Chief  Justice  Shaw,  after  saying 
that  whatever  common-law  rules,  in  the  absence  of  any  express 
rule  of  law,  the  courts  have  adopted,  to  determine  what  action 
constitutes  the  actual  transfer  of  shares,  w^hen  the  transfer  is 
so  regulated,  such  law  must  govern,  held  that  an  express  provi- 
sion in  the  act  of  incorporation  of  a  bank  that  the  stock  should 
be  transferable  only  at  its  banking  house  and  on  its  books, 
makes  a  transfer  at  the  bank  imperative  as  against  an  attaching 
creditor  without  notice  of  previous  assignment  and  delivery  of 
the  certificate  to  a  purchaser.  The  reasoning  was  to  the  effect 
that  it  is  necessary  to  fix  some  act  and  some  period  of  time  at 
which  the  property  changes  and  vests  in  the  vendee,  and  that 
by  the  charter  the  transfer  at  the  bank  is  made  the  decisive  act 
of  passing  the  property  —  the  legal,  transferable,  attachable 
interest. 

From  the  cases  cited  and  quoted  from,  it  will  be  observed, 
that  the  courts  of  the  several  states  are  not  entirely  harmonious 
in  their  holdings  upon  this  question.  The  majority  of  the 
courts,  however,  have  held  that  a  transfer  of  stock  unrecorded, 
upon  the  books  of  the  company,  is  not  valid  as  against  creditors 
of  the  seller  when  the  charter  or  by-laws  of  the  corporation  or 
the  statutes  of  the  state  require  such  record;  this  is  upon  the 
theory  that  nothing  short  of  a  compliance  with  the  provisions 
of  the  charter,  by-laws  and  statutes  of  the  state  would  be  a  con- 
structive notice  of  such  transfer,  or  sufficient  to  validate  the 
transaction  as  to  creditors  or  hona  fide  purchasers. ^'^     But  the 

15  Colt  V.  Ives,  31  Conn.  25.  manner  in  which  stocks  should  be 

16  5  Gray,  373.  transferable,  and  where  that  mode 

17  Parrott  v.  Byers,  40  Cal.  614;  of  transfer  was  simply  provided 
Nagler  v.  Pacific  Wharf  Co.,  20  in  its  by-laws.  Where  the  char- 
Cal.  629;  People  v.  Elmore,  35  ter  regulated  the  manner  of  trans- 
Cal.  653.  In  Massachusetts  by  the  fer,  it  was  held  that  this  mode 
passage  of  the  statute  in  that  must  be  followed  to  pass  a  good 
state  regulating  the  transfer  of  title  against  attaching  creditors, 
stock,  the  courts  seem  to  have  Fisher  v.  Essex  Bank,  5  Gray,  373 ; 
held  differently  where  the  charter  Rock  v.  Nichols,  3  Allen,  342; 
of   the    corporation    provides    the  Blanchard  v.  Dedham  Gas  Co.,  12 


232  PLEDGE   OE  PAWN.  [§    252. 

courts  of  all  the  states  would  undoubtedly  feel  compelled  to 
hold  that  an  actual  notice  that  a  transfer  had  been  made  by 
delivery  of  the  stock  duly  assigned,  with  power  of  attorney  to 
transfer  upon  the  books,  although  unregistered,  would  be  as 
effective  as  though  the  transfer  were  registered,  and  would 
supersede  the  rights  of  creditors  attaching  with  full  knowledge 
of  such  transfer.^® 

It  will  no  doubt  be  necessary  to  examine  the  statute  of  the 
state  in  which  the  contract  is  made  in  order  to  determine  the 
rights  of  the  pledgee  in  each  instance;  the  statutes  and  the 
holdings  of  the  courts  of  the  different  states  being  so  varied  that 
it  is  impossible  to  lay  down  any  fixed  rule  governing  all  transac- 
tions. 

§  252.  The  pledgee  of  stock  by  indorsement  may  transfer 
the  title. — As  has  been  said,  when  the  stock  is  indorsed  in 
blank  and  delivered  to  the  pledgee  as  a  pledge,  he  may  write 
over  the  indorsement  the  direction  and  power  necessary  to  war- 
rant the  transfer  of  the  stock  upon  the  books  of  the  company, 
and,  as  we  have  seen,  he  thus  becomes  at  least  the  apparent 
actual  owner  of  the  stock,  having  all  the  indicia  of  ownership  of 
the  same;  he  is  therefore  enabled  to  confer  upon  a  hona  fide 
purchaser,  paying  value  for  it,  a  good  title  even  as  against  the 
true  owner.  Such  a  title  as  between  the  owner  and  the  pledgee 
rests  upon  the  doctrine  of  estoppel;  the  true  owner  having 
conferred  upon  the  apparent  o^Tier,  by  a  written  transfer,  all 
the  indicia  of  ownership  of  the  stock,  is  estopped  from  impeach- 
ing the  title  thus  conferred  and  asserting  his  own  title;  the 
rule  being  well  established,  that,  as  between  two  innocent  par- 
Gray,  213.  Where  only  the  by-  is  Scripture  v.  Francistown  Soap 
laws  of  the  corporation  make  such  Co.,  50  N.  H.  371.  In  Newberry 
provision,  a  transfer  of  stock  with-  v.  Detroit,  etc.  Co.,  17  Mich.  141, 
out  registration  or  transfer  upon  the  court  held  that  "a  transfer  of 
the  books,  held  good  against  at-  stock,  whether  recorded  or  not, 
taching  creditors  without  notice,  conveys  the  interest  of  the  holder, 
Sergeant  v.  Essex  Ry.  Co.,  9  Pick.  and  is  valid  except  as  against  per- 
202;  Sergeant  V.  Franklin  Ins.  Co.,  sons  having  equities;  and  a  judg- 
8  Pick.  90.  See  also  Sibley  v.  ment  creditor  buying  at  an  exe- 
Quinsigmond  Nat.  Bank,  133  Mass.  cution  sale  with  notice  of  the 
515;  Shipman  V.  ^tna  Ins.  Co.,  29  transfer  can  get  no  better  title 
Conn.  245;  Oatis  v.  Gardner,  105  than  his  debtor  had." 
111.  435;  Cheever  y.  Myer,  2  Vt. 
66. 


§    252.]  NON-NEGOTIABLE  AND  QUASI-NEGOTIABLE.  233 

ties,  he  who  has  made  it  possible  for  another  to  commit  the 
wrong  must  suffer ;  and  it  has  been  held,  ' '  first,  that  the  posses- 
sion of  certificates  of  corporate  stock,  which  bear  the  proper  in- 
dorsement, is  prima  facie  evidence  of  ownership,  and  that  the 
holder  for  value  without  notice  of  prior  equities  obtains  a  per- 
fect title  as  against  such  equities;  second,  if  the  rightful  owner 
has  invested  another  with  the  usual  evidence  of  title  or  an  ap- 
parent authority  to  dispose  of  the  stock,  he  will  be  estopped 
from  making  any  claim  against  an  innocent  purchaser  dealing 
on  the  faith  of  such  apparent  ownership  or  right  of  disposal. '  '^® 
But  in  such  case  the  pledgor  is  not  without  remedy;  if  the 
pledgee  has  disposed  of  the  stock,  the  pledgor  may  bring  an 
action  against  him  for  conversion,  and  recover  its  value.  If 
the  stock  is  still  in  the  hands  of  the  pledgee,  or  if  it  has  been 
transferred  to  a  third  person  having  notice  of  the  equities  ot 
the  pledgor;  that  is  to  say,  one  who  has  notice  of  the  fact  that 
the  stock  is  held  as  a  pledge,  and  was  not  intended  to  be  trans- 
ferred by  a  sale  to  the  pledgee;  the  pledgor  in  such  case  could 
sustain  a  bill  in  equity  against  the  pledgee  and  such  third  per- 
sons so  holding  the  stock  with  notice,  and  the  court  of  equity 
would  declare  that  the  stock  was  held  as  a  pledge  and  not  by 
reason  of  actual  transfer.  The  maxim  in  equity  would  apply, 
"Equity  regards  substance  rather  than  form;"  and  although 
the  transfer  upon  its  face  might  be  absolute,  or  even  have  gone 
so  far  as  to  have  been  transferred  to  the  pledgee  upon  the  books 
of  the  company,  stiU  the  court  of  equity  would  declare  that 
such  transfer  was  but  a  pledge,  and,  if  new  certificates  of  stock 
had  been  issued,  would  decree  their  cancellation,  and  that  cer- 
tificates upon  the  redeeming  of  the  pledge  be  issued  to  the 
pledgor. 

In  the  case  of  Brick  v.  BricJi,^^  Field,  J.,  in  the  opinion  of 

19  Walker  v.  Detroit  Transit  Ry.  pledgee    for    his    own    debt    and 

Co.,  47  Mich.  338.    See  authorities  money  advanced.     Held  that  the 

cited   by  the   court  at  page   347;  owner  could  not  recover  his  stock 

also  brief  of  counsel.     In  Gurley  until  he  paid  the  debt  for  which  it 

V.  Reed,  190  Mass.  509,  the  owner  was  pledged. 

delivered  stock  indorsed  in  blank  2098  U.  S.  514;   Hughes  v.  Ed- 

to   another   to   pledge,   permitting  wards,   9   Wheat.   489;    Russell  v. 

him  to  have  the  stock  transfered  Southern,  12  How.  139;   Pierce  v. 

to  himself  and  take  a  new  certifl-  Robinson,  13  Cal.  116.    In  the  case 

cate;    the    person    thus   entrusted  of  Newton  v.   Fay,  10  Allen,  505, 

pledged  the  stock  to  a  bona  fide  the   court  enters   into  a  full  dis- 


234 


PLEDGE   OR  PAWN. 


[§  252. 


the  court,  said:  "In  the  late  case  of  Peugh  v.  Davis  (96  U.  S. 
336)  we  stated  the  doctrine  of  equity  on  this  subject.  Where 
an  instrument  Avas  in  the  form  of  a  conveyance,  but  was  in  fact 
intended  as  a  security,  and  though  the  instrument  there  was  a 
deed  of  real  property,  the  principle  applies  when  the  instru- 
ment purports  to  transfer  personal  property.  A  court  of 
equity,  we  there  said,  looks  beyond  the  terms  of  the  instrument 
to  the  real  transaction,  and  when  that  is  shown  to  be  one  of 


cussion  of  this  question.  Chap- 
man, J.,  in  rendering  the  opinion, 
says:  "The  policy  of  courts  of 
equity  has  been  from  the  earliest 
time  to  protect  debtors,  whom 
they  regard  as  the  weaker  party, 
against  being  wronged  or  op- 
pressed by  creditors,  whom  they 
regard  as  the  stronger  party. 
Their  method  of  interference  has 
been  by  preventing  the  creditor 
from  maintaining  his  title  accord- 
ing to  the  legal  effect  of  his  con- 
veyance whenever  it  was  inequi- 
table for  him  to  do  so.  There- 
fore, it  was  held  in  Howard  v. 
Harris,  1  Vern.  190,  that  if  a 
mortgage  is  made  by  its  terms  ir- 
redeemable, or  the  redemption  is 
restricted,  such  restrictions  are 
disregarded.  In  Spugeon  v.  Col- 
lier, 1  Eden,  55,  the  same  doctrine 
was  held,  and  Lord  Northington 
said  that  a  man  will  not  be  suf- 
fered in  conscience  to  fetter  him- 
self with  a  limitation  or  restric- 
tion of  his  time  of  redemption. 
In  Vernon  v.  Bethell,  2  Eden,  110, 
parol  evidence  was  admitted  to 
prove  that  an  absolute  conveyance 
of  an  equity  of  redemption  of  real 
estate  was  made  as  security  for 
a  loan  and  for  no  other  considera- 
tion, and  the  vendor  was  permit- 
ted to  redeem.  The  court  said 
that  necessitous  men  are  not, 
truly  speaking,  free  men,  but  to 
answer  a  present  exigency  will 
submit    to    any    terms    that    the 


crafty  may  impose  upon  them. 
When  such  parol  evidence  has 
been  admitted,  it  has  not  been  re- 
garded as  inconsistent  with  the 
statute  of  frauds.  In  Walker  v. 
Walker,  2  Atk.  98,  Lord  Hard- 
wicke  said  it  had  nothing  to  do 
with  the  statute  of  frauds.  In 
Kunkle  v.  Wolfersberger,  6  Watts, 
126,  Gibson,  G.  J.,  said  the  proof 
raises  an  equity  consistent  with 
the  writing.  It  seems  to  be  re- 
garded as  an  inquiry  into  the  con- 
sideration of  the  sale,  for  the  pur- 
pose of  doing  equity  between  the 
parties.  The  rule  on  this  subject 
and  the  reason  of  it  are  fully  and 
clearly  stated  by  Mr.  Justice  Cur- 
tis in  Russell  v.  Southard,  12  How. 
139.  He  says:  'To  insist  on  what 
was  realy  a  mortgage  as  a  sale  is 
in  equity  a  fraud  which  cannot 
be  successfully  practiced  under 
the  shelter  of  any  written  papers, 
however  precise  and  complete 
they  may  appear  to  be.'  He  cites 
several  English  as  well  as  Ameri- 
can authorities  to  sustain  this  po- 
sition. In  the  prior  case  of  Mor- 
ris V.  Nixon,  1  How.  126,  the  same 
doctrine  had  been  before  held, 
and  in  Babcock  v.  Wyman,  2  Cur- 
tis, C.  C.  386;  S.  C,  19  How.  289, 
it  was  re-af5rmed.  The  case  of 
Russell  V.  Southard  came  up  from 
Kentucky,  and  Mr.  Justice  Curtis 
says:  'It  is  suggested  that  a  dif- 
ferent rule  is  held  by  the  highest 
court  in   Kentucky.      If  it  were. 


§  252.: 


NON-NEGOTIABLE  AND  QUASI-NEGOTIABLE. 


235 


security  and  not  of  sale  it  will  give  effect  to  the  actual  con- 
tract of  the  parties.  As  the  equity  upon  which  the  court  acts 
in  such  cases  arises  from  the  real  character  of  the  transaction, 
any  evidence,  written  or  oral,  tending  to  show  this  is  admissible. 
The  rule  which  excludes  parol  testimony  to  contradict  or  vary 
a  written  instrument  has  reference  to  the  language  used  by  the 
parties.  That  cannot  be  qualified  or  varied  from  its  natural 
import;  it  must  speak  for  itself.  The  rule  does  not  forbid  an 
inquiry  into  the  object  of  the  parties  in  executing  and  receiving 
the  instrument.     Thus,  it  may  be  shown  that  a  deed  was  made 


with  great  respect  for  that  learned 
court,  this  court  would  not  feel 
bound  thereby.  This  being  a  suit 
in  equity,  and  oral  evidence  being 
admitted  or  rejected  not  by  the 
mere  force  of  any  state  statute', 
but  upon  the  principles  of  general 
equity  jurisprudence,  this  court 
must  be  governed  by  its  own 
views  of  those  principles.'  But 
he  cites  the  case  of  Edrington  v 
Harper,  3  J.  J.  Marsh.  355,  where 
it  was  held  that  the  fact  that  the 
real  transaction  between  the  par- 
ties was  a  borrowing  and  lending 
will,  whenever  or  however  it  may 
appear,  show  that  a  deed  abso- 
lute upon  its  face  was  intended 
as  a  security  for  money,  and 
whenever  it  can  be  ascertained 
to  be  a  security  for  money,  it  is 
only  a  mortgage.  Mr.  Justice 
Story  had  held  the  same  doctrine 
at  a  still  earlier  period.  He  held 
that  parol  evidence  was  admissi- 
ble to  show  that  an  absolute  deed 
was  intended  as  a  security  for 
money,  and  that  such  a  deed 
should  be  treated  as  a  mortgage, 
whether  the  defeasance  was 
omitted  by  fraud,  mistake  or  ac- 
cident, or  by  design,  upon  mutual 
confidence  between  the  parties; 
for  he  says  the  violation  of  such 
an  agreement  would  be  a  fraud  of 
the  most  flagrant  kind,  originat- 
ing  in    an   open   breach   of  trust. 


against  conscience  and  justice. 
Taylor  v.  Luther,  2  Sumner,  228; 
Jenkins  v.  Eldridge,  3  Story,  293. 
The  same  rule  has  long  been  held 
in  New  York  and  on  the  same 
ground.  Strong  v.  Stewart,  4 
Johns.  Ch.  167,  was  decided  by 
Chancellor  Kent  on  the  strength 
of  several  English  authorities 
cited  by  him.  See  also  Slee  v. 
Manhattan  Co.,  1  Paige,  48;  "Van 
Buren  v.  Olmstead,  5  Paige,  9.  In 
the  latter  case  the  rule  is  said  to 
be  well  settled.  After  consider- 
able discussion  it  was  settled  that 
the  rule  was  limited  to  cases  in 
equity,  and  did  not  prevail  in 
courts  of  law.  Webb  v.  Rice,  1 
Hill,  606;  Hodges  v.  Tennessee 
Ins.  Co.,  4  Selden,  416.  But  by 
the  code  parol  evidence  is  made 
admissible  both  at  law  and  in 
equity  to  show  that  an  assign- 
ment, though  absolute  in  its 
terms,  was  a  security  for  a  loan 
or  an  indemnity  against  a  liabil- 
ity, and  is  therefore  a  mortgage. 
Despard  v.  Walbridge,  15  N.  Y. 
374.  In  Wright  v.  Bates,  13  Vt. 
341,  the  court  say:  'It  is  well  set- 
tled in  this  state  that  a  court  of 
chancery  will  treat  an  absolute 
deed  of  real  estate,  given  to  se- 
cure the  payment  of  a  debt,  as  a 
mortgage,  as  between  the  imme- 
diate parties,  especially  if  the 
grantor    continues    to    remain    in 


236 


PLEDGE   OR  PAWN. 


[§  252,, 


to  defraud  creditors,  or  to  give  a  preference,  or  to  secure  a 
loan,  or  for  any  other  object  not  apparent  on  its  face.  The 
object  of  parties  in  such  cases  will  be  considered  by  a  court  of 
equity;  it  constitutes  a  ground  for  the  exercise  of  its  jurisdic- 


possession,  though  the  defeasance 
rests  wholly  in  parol.'  But  where 
the  possession  has  followed  the 
deed  through  several  grantees, 
such  evidence  is  held  inadmissi- 
ble. Conner  v.  Chase,  15  Vt.  764. 
And  in  this  last  case,  Williams, 
C.  J.,  argues  against  the  rule  it- 
self. In  a  note  to  2  Cruise  Dig. 
(Greenl.  ed.),  tit.  XV,  ch.  1,  sec. 
20,  it  is  said  that  'in  Maine  and 
Massachusetts  the  statutes  rec- 
ognize only  two  modes  of  creating 
a  mortgage  to  which  the  chancery 
jurisdiction  of  the  courts  extends, 
namely,  by  proviso  inserted  in  the 
deed,  and  by  a  separate  deed  of 
defeasance.  All  equitable  mort- 
gages created  by  contract  of  the 
parties  seem,  therefore,  to  be  ex- 
cluded. Relief,  if  any,  in  other 
cases  must  be  referred  to  the 
head  of  fraud,  trust,  or  accident 
and  mistake.'  Since  the  publica- 
tion of  that  work  relief  has  been 
afforded  under  this  head  in  a  case 
where  an  absolute  deed  was  al- 
leged to  have  been  intended  as  a 
security  for  a  debt,  and  where 
the  answer  and  proof  showed  the 
intention.  Howe  v.  Russell,  36 
Me.  115.  No  case  has  arisen  in 
this  commonwealth  where  this 
court  could  consider  whether  it 
would  adopt  the  rule  of  equity  ad- 
mitting parol  evidence  to  prove 
that  an  absolute  deed  was  given 
as  security  for  a  loan  or  for  in- 
demnity. For  though  the  court 
has  had  jurisdiction  of  trusts  for 
many  years,  yet  the  jurisdiction 
has  been  strictly  construed,  and 
has  been  held  not  to  extend  to 
trusts    created    by    converting    a 


fraud  into  a  trust.  Mitchell  v. 
Green,  10  Met.  101.  As  a  mort- 
gage is  not  strictly  a  trust,  but 
the  element  of  fraud  is  held  to 
enter  into  the  attempt  to  convert 
it  into  an  absolute  sale,  the  court 
could  not,  prior  to  1855,  have  en- 
tertained jurisdiction  of  such  a 
case.  The  present  case  does  not 
require  us  to  decide  whether  the 
rule  ought  to  be  adopted  here  in 
application  to  a  mortgage  of  real 
estate.  But  in  respect  to  the 
transfer  of  stocks,  which  requires 
but  little  formality  between  the 
parties,  and  is  often  made  in  the 
hurry  of  business,  as  a  bill  of 
parcels  is  made,  and  as  to  which 
a  trust  may  be  created  and  proved 
by  parol,  and  which  is  to  be  re- 
garded as  a  pledge  rather  than  a 
mortgage,  when  used  as  a  collat- 
ei'al  security,  we  think  the  prin- 
ciple of  equity  jurisdiction  so  fully 
established  elsewhere  in  regard 
to  instruments  much  more  for- 
mally executed  ought  to  be 
adopted,  admitting  oral  proof  as 
to  the  consideration  and  purpose 
of  the  transfer,  and  that,  upon  the 
discharge  of  the  debt  or  duty  se- 
cured by  it,  the  pledgor  should  be 
permitted  to  redeem."  Transfer 
of  mortgage  as  collateral,  abso- 
lute in  form,  held  to  be  a  pledge. 
Barber  v.  Hathaway,  169  N.  Y.  S. 
575.  And  where  certificates  of 
stock  were  pledged  and  delivered 
and  afterwards  repledged,  the 
possession  of  the  first  pledgee 
might  be  considered  possession 
of  the  second  through  agency  of 
the  pledge.  First  Nat.  Bank  v. 
Bacon,  98  N.  Y.  S.  717. 


§    253.]  NON-NEGOTIABLE  AND   QUASI-NEGOTIABLE.  237 

tiou,  which  will  always  be  asserted  to  prevent  fraud  or  oppres- 
sion and  to  promote  justice."  But  in  such  case  it  is  only  the 
hona  fide  purchaser  that  can  take  a  valid  title  of  the  stock  from 
the  pledgee.  A  purchaser  who  has  no  knowledge  of  the  real 
facts  as  to  the  pledgee's  holding  the  stock,  and  where  there  is 
nothing  upon  the  face  of  the  certificates  which  would  put  a 
reasonably  prudent  man  upon  inquiry;  as,  for  example,  if  upon 
its  face  the  certificates  of  stock  were  charged  with  a  trust ;  or  if 
there  was  acknowledged  upon  the  part  of  the  person  taking 
such  stock  from  the  pledgee  that  the  stock  was  charged  with 
the  trust,  or  if  upon  the  face  of  the  stock  it  appeared  that 
the  stock  was  fictitious,  the  purchaser  could  not  claim  to  be  a 
ho7ia  fide  holder. 

Bills  of  Lading. 

§  253.  Bills  of  lading  subjects  of  pledge. — A  bill  of  lading 
is  defined  to  be  a  written  acknowledgment  signed  by  the  common 
carrier  that  he  has  received  the  goods  therein  described  from 
the  shipper  to  be  transported  on  the  terms  therein  expressed 
to  the  described  place  of  destination,  and  there  to  be  delivered 
to  the  consignee  or  parties  therein  designated.  By  it  the  com- 
mon carrier  contracts  to  carry  and  deliver  goods  to  the  con- 
signee, or  to  the  order  of  the  shipper.  It  will  be  borne  in  mind 
that  the  property  described  in  the  bill  of  lading  is  in  the  posses- 
sion of  the  common  carrier  for  the  purpose  only  of  delivery  to 
the  consignee.  It  has  been  said  that  a  bill  of  lading  is  a  symbol 
of  property,  and  when  properly  indorsed  operates  as  a  delivery 
of  the  property  itself,  investing  the  indorsee  with  a  constructive 
custody  which  serves  all  the  purposes  of  an  actual  possession, 
and  so  continues  until  there  is  a  valid  and  complete  delivery 
under  and  in  pursuance  of  the  bill  of  lading  to  the  person  en- 
titled to  receive  the  property.^^  It  may  therefore  be  said  that  a 
bill  of  lading  is  in  the  nature  of  a  gi(asi-negotiable  instrument, 
and  that  long-continued  custom  and  the  usages  of  trade  have 
given  to  it  distinctive  characteristics,  among  which  are,  that  a 
transfer  of  the  property  may  be  efi'ected  by  an  indorsement  of 
the  bill  by  the  consignee  to  whomsoever  he  desires  to  deliver  the 
property,  and  that  the  same  rules  would  apply  to  a  bill  of  lading 

21  Hieskell  v.  Farmers'  Bank,  89  Pa.  St.  155;  Dows  v.  National  Ex- 
change Bank,  91  U.  S.  618,  629. 


238  PLEDGE   OR  PAWN.  [§    25-1. 

as  those  whicli  have  been  already  discussed  with  reference  to  ne- 
gotiable instruments.  "We  have  only  to  consider  here  whether  a 
bill  of  lading  is  the  subject  of  a  pledge,  and  to  what  extent  its 
indorsement  and  delivery  for  that  purpose  is  necessary  to  create 
a  pledge  to  secure  the  discharge  of  some  obligation  or  the  pay- 
ment of  a  debt.  If  indorsement  and  delivery  of  the  bill  of  lad- 
ing is  sufficient  to  transfer  the  possession  and  title  of  the  prop- 
erty, it  is  certainly  sufficient  to  transfer  to  the  pledgee  a  posses- 
sion to  be  held  in  pledge  for  the  performance  of  an  obligation  or 
the  payment  of  a  debt. 

In  Pollard  v.  Yinton,"^^  Miller,  J.,  in  delivering  the  opinion  of 
the  court  took  occasion  to  speak  of  the  character  and  effect  of 
a  bill  of  lading,  and  used  this  language:  "A  bill  of  lading  is  an 
instrument  well  kno"\vn  in  commercial  transactions,  and  its 
character  and  effect  have  been  defined  by  judicial  decisions. 
In  the  hands  of  the  holder  it  is  evidence  of  ownership,  special 
or  general,  of  the  property  mentioned  in  it,  and  of  the  right  to 
receive  said  property  at  the  place  of  delivery.  Notwithsta-nd- 
ing  it  is  designed  to  pass  from  hand  to  hand  with  or  without 
indorsement,  and  is  efficacious  for  its  ordinary  purposes  in 
the  hands  of  the  holder,  it  is  not  a  negotiable  instrument  or 
obligation  in  the  sense  that  a  bill  of  exchange  or  a  promissory 
note  is.  Its  transfer  does  not  preclude,  as  in  those  cases,  all  in- 
quiry into  the  transaction  in  which  it  originated  because  it  has 
come  into  the  hands  of  persons  who  have  innocently  paid  value 
for  it ;  the  doctrine  of  hona  fide  purchasers  only  applies  to  it  in 
a  limited  sense.  It  is  an  instrument  of  a  twofold  character;  it 
is  at  once  a  receipt  and  a  contract.  In  the  former  character  it 
is  an  acknowledgment  of  the  receipt  of  property  on  board  his 
vessel  by  the  owner  of  the  vessel.  In  the  latter  it  is  a  contract 
to  carry  safely  and  deliver.  The  receipt  of  the  goods  lies  at  the 
foundation  of  the  contract  to  carry  and  deliver." 

§  254.  Delivery  by  the  pledgor. — It  follows  from  what  has 
been  said  that  the  pledgor,  to  create  a  pledge  of  the  bill  of 
lading,  or  the  property  which  it  represents,  must  deliver  the 
bill  with  such  transfer  or  assignment  of  the  same  as  will  be 
necessary  to  give  to  the  pledgee  possession  and  control  of  the 
property  represented  by  the  bill  of  lading.  "Whatever  is  neces- 
sary to  be  done  in  order  to  bring  this  about  must  be  done  in 

22 105  U.  S.  7. 


§    254.]  NON-NEGOTIABLE  AND   QUASI-NEGOTIABLE.  239 

order  to  create  the  pledge.  By  usage  and  custom  it  has  come 
to  be  recognized  that  a  bill  of  lading  may  be  transferred  by  de- 
livery and  indorsement  in  blank  by  the  owner  to  the  transferee, 
if  it  be  the  intention  of  the  parties  by  such  delivery  to  make  the 
transfer.  Hence  it  may  be  said  that  the  owner  of  the  property, 
or  the  consignee  of  the  property,  if  it  is  consigned  to  another  per- 
son than  the  owner,  may  pledge  the  property  by  indorsing  the 
bill  of  lading  in  blank  and  delivering  it  to  the  pledgee  with  the 
intention  of  creating  the  pledge.  And  so  it  has  been  held  that 
a  pledge  of  the  bill  of  lading,  drawn  to  the  order  of  the  pledgor, 
may  be  created  by  mere  delivery  to  the  pledgee. 

In  First  Nat.  Bank  v.  Dearborn  ^^  it  was  held :  ' '  The  delivery 
by  an  owner  of  goods  of  a  common  carrier's  receipt  for  them, 
not  negotiable  in  its  nature,  as  security  for  an  advance  of  money, 
with  the  intent  to  transfer  the  property  in  the  goods,  is  a  sym- 
bolical delivery  of  them,  and  vests  in  the  person  making  the 
advance  a  special  property  in  the  goods  sufficient  to  maintain 
replevin  against  an  officer  who  afterwards  attaches  them  upon 
a  writ  against  the  general  owner."  It  has  also  been  held  that 
a  bill  of  lading  stands  in  place  of  the  property  covered  by  it. 
It  represents  the  property.  When  the  right  of  possession  is 
changed  by  a  sale  or  pledge  of  the  property  itself,  the  transfer 
of  the  bill  of  lading  operates  as  a  change  of  possession  of  the 
property,  the  carrier  in  the  meantime  being  the  custodian  for 
the  real  owner  or  party  in  interest.  While  the  bill  of  lading  is 
not  a  negotiable  instrument  in  the  sense  in  which  a  bill  of  ex- 
change or  promissory  note  is  negotiable,  yet,  as  the  representa- 
tive of  a  valuable  commodity,  it  is  assignable  to  the  party  en- 
titled to  control  the  possession  of  that  commodity  to  the  same 
extent  and  for  the  same  purposes  as  the  property  itself  would 
be,  if  corporeal,  personalty.     Inasmuch,  therefore,  as  these  in- 

23  115  Mass.  219.  The  following  the  transfer  by  delivery  vested  a 
authorities  are  cited  in  the  opin-  special  property  in  the  trans- 
ion;  Tuxworth  V.  Moore,  9  Pick.  feree.  Peters  v.  Elliott,  78  111. 
347;  Fettyplace  v.  Dutch,  13  Pick.  321;  Tiedeman  v.  Knox,  53  Md. 
388;  Whipple  v.  Thayer,  16  Pick.  612.  In  the  latter  case  it  was  held 
2;  National  Bank  v.  Crocker,  111  that  "where  one  paid  a  draft,  re- 
Mass.  163.  Where  the  bill  desig-  ceiving  the  bill  as  security,  the 
nated  no  conveyance,  and  con-  title  to  the  goods  became  vested 
tained  the  words  "this  receipt  is  in  him." 
not  transferable,"  it  was  held  that 


240 


PLEDGE   OR   PAWN. 


[§  255. 


struments  are  capable  of  performing  very  important  functions 
in  commercial  transactions,  innocent  holders  thereof  for  value 
ought  to  receive  the  same  protection  as  if  they  held  possession 
of  the  property  itself. 

§  255.  Mere  delivery  of  the  bill  sufficient. — A  mere  indorse- 
ment of  the  bill  of  lading  without  delivery  would  not  transfer 
the  property.-*  Delivery  seems  to  be  an  absolute  requisite  to 
the  creation  of  a  pledge  of  the  property.  The  important  es- 
sential in  this  class  of  cases  is  that  there  be  evidence  of  inten- 
tion upon  the  part  of  the  pledgor,  or  in  case  of  a  bill  of  lading 
on  the  part  of  the  owner  or  consignee,  to  deliver  the  property 
represented  in  the  bill  of  lading;  that  intention  is  evidenced 
by  the  delivery  of  the  bill  for  the  purpose  of  creating  the 
pledge  or  delivering  the  property;  and  it  is  held  that  a  mere 
delivery  of  the  bill  of  lading,  with  intention  by  it  to  deliver 
the  property,  or  to  create  a  pledge,  is  sufficient,  and  that  a  writ- 
ten indorsement  is  not  absolutely  necessary.^^     In  this  case  the 


24  In  Buffington  v.  Curtis,  15 
Mass.  528,  it  was  held:  "The  mere 
indorsement  of  a  bill  of  lading 
without  a  delivery  of  it  does  not 
transfer  the  property  in  the 
goods."  Lickbarrow  v.  Mason,  2 
T.  R.  63. 

25  Mich.  Cent.  R.  Co.  v.  Philips, 
60  111.  190;  Western  Ry.  Co.  v. 
Wagner,  65  111.  197;  Allen  v.  Will- 
iams, 12  Pick.  297;  Green  Bay 
First  Nat.  Bank  v.  Dearborn,  115 
Mass.  219;  Jeffersonville  R.  Co. 
V.  Irvin,  46  Ind.  180;  Becker  v. 
Hallgarten,  86  N.  Y.  167,  175; 
Rochester  v.  Jones,  4  N.  Y.  497, 
55  Am.  Dec.  — ;  Merchants'  Bank 
V.  N.  R.  R.  T.  Co.,  69  N.  Y.  376, 
379-99;  City  Bank  v.  Railroad  Co., 
44  N.  Y.  136;  Holmes  v.  German 
Security  Bank,  87  Pa.  St.  525; 
Holmes  v.  Bailey,  92  Pa.  St.  57; 
Richardson  v.  Nathan,  167  Pa.  St. 
513;  Schraff  v.  Meyer,  133  Mo. 
428,  42  Cent.  Law  Jour.  367.  In 
the  latter  case  the  court  held: 
"The  transfer  of  a  bill  of  lading 
by  delivery  without  indorsement 


carries  with  it  all  the  rights  of 
the  transferror  in  the  goods  rep- 
resented by  it,  and  extrinsic  evi- 
dence is  admissible  to  show  what 
such  interest  is.  The  fact  that 
the  state  statute  provides  for  the 
transfer  of  bills  of  lading  by  in- 
dorsement does  not  restrict  that 
transfer  to  such  method.  Where 
a  contract  for  sale  of  goods  shows 
that  they  were  to  be  delivered  at 
the  termination  of  a  carrier's  lien, 
their  delivery  by  the  seller  to  the 
carrier,  though  consigned  to  the 
buyer,  will  not  pass  the  title,  and 
a  transfer  of  the  bill  of  lading  by 
the  seller  will  vest  the  trans- 
feree with  the  right  of  possession 
of  the  goods.  But  where  delivery 
to  the  carrier  operates  under  the 
contract  of  sale  to  pass  title  to 
the  buyer,  the  retention  and  trans- 
fer of  the  bill  of  lading  by  the  sel- 
ler will  carry  no  right  in  the 
goods,  though  by  statute  the  car- 
rier is  forbidden  to  deliver  the 
goods  without  the  presentation  of 
the  bill  of  lading." 


§    255.]  NON-NEGOTIABLE  AND  QUASI-NEGOTIABLE.  241 

court  say:  "In  legal  effect  and  for  the  purpose  of  explaining 
what  is  to  be  done  with  the  merchandise,  there  can  be  no  sub- 
stantial difference  between  a  bill  of  lading  and  a  carrier's  re- 
ceipt. We  have  in  this  case  an  intent  of  the  general  owners  of 
the  flour  to  make  use  of  it  as  a  security  for  an  advance  of 
money  from  the  plaintiff;  a  delivery  of  the  bill  of  lading  in 
pursuance  of  that  intent,  and  a  valuable  and  executed  consid- 
eration in  the  discounting  of  the  draft.  The  fact  that  the  goods 
were  in  the  custody  of  the  defendant  would  not  prevent  this 
arrangement  from  having  the  effect  to  transfer  the  title  of  con- 
signors to  plaintiffs.  Whether  it  should  be  regarded  as  a  sale, 
a  pledge,  or  a  mortgage,  there  was  a  sufficient  delivery  to  give 
to  the  plaintiffs  a  special  property  which  they  could  enforce 
by  suit  against  any  wrong-doer. ' ' 

In  Merchants'  Bank  v.  N.  &  B.  R.  T.  Co.  (cited  in  the  note), 
the  court  say:  "The  rule  is  well  settled  that  property  or  goods 
shipped  by  a  bill  of  lading  drawn  to  order  may  be  transferred 
by  delivery  to  a  third  person  without  any  indorsement.  Bills 
of  lading  are  choses  in  action,  and  no  rule  is  better  established 
than  that  instruments  of  this  character  may  be  transferred  for 
a  valuable  consideration  by  delivery  only."  But  it  has  been 
held,  where  the  bill  of  lading  makes  the  goods  deliverable  to 
the  person  named  as  consignee,  and  there  are  no  words  of  nego- 
tiability, then  in  such  a  case  the  mere  delivery  of  the  instru- 
ment, when  it  is  intended  to  have  the  effect  to  transfer  the 
title  to  the  goods  described  in  it,  will  be  sufficient  to  transfer 
the  title.  And  where  the  bill  of  lading  is  drawn  to  order,  this 
will  not  prevent  a  transfer  of  the  property  to  a  third  person 
by  a  mere  delivery  of  the  bill.-'' 

In  Emery  Sons  v.  Irtvin  Nat.  Bank,^''  the  court  say:  "By  the 
rules  of  commercial  law,  bills  of  lading  are  regarded  as  symbols 

26  City  Bank  v.  R.  W.  &  O.  R.  lading  with  intent  to  pass  the  title 

Co.,  44  N.  Y.  136.     The  court  held  has  that  effect,  although  it  be  not 

that  "delivery  of  a  bill  of  lading  payable  to  'assigns,'  or,  if  so  pay- 

with  intent  to  pass  the  title  has  able,   it   be   not   indorsed."      Par. 

that   effect,    although   the   bill   is  Mer.    Law,    346;    2    Kent's    Com. 

drawn    to    order    and    is    not    in-  207. 

dorsed."     The  court  say:    "I  sup-  2725   Ohio   St.   360.     A   full   dis- 
pose,   however,    that   the   title   to  cussion  may  be  found  in  Neill  & 
the  wheat  passed  to  the  plaintiff  Ellingham  v.  Produce  Co.,  41  W. 
by  the  delivery  of  the  bill  of  lad-  Va.   37. 
ing.      The    delivery    of    a    bill    of 

16 


242  PLEDGE  OE  PAWN.  [§    256. 

of  the  property  therein  described,  and  delivery  of  such  bill  by 
one  having  an  interest  in,  or  a  right  to  control,  the  property,  is 
equivalent  to  a  delivery  of  the  property  itself.  A  consignor 
who  has  reserved  the  jus  disponendi  may  effectuate  a  sale  or 
pledge  of  the  property  consigned  by  delivery  of  the  bill  of  sale 
to  the  purchaser  or  pledgee,  as  completely  as  if  the  property 
were  in  fact  delivered.  If  such  transfer  of  the  bill  of  lading 
be  made  after  the  property  has  passed  into  the  actual  possession 
of  the  consignee,  the  transferee  of  the  bill  takes  it  subject  to 
any  right  or  lien  which  the  consignee  may  have  acquired  by 
reason  of  his  possession.  But  if  the  bill  of  lading  be  trans- 
ferred by  way  of  sale  or  pledge  to  a  third  person  before  the 
property  comes  into  the  possession  of  the  consignee,  the  con- 
signee takes  the  property  subject  to  any  right  which  the  trans- 
feree of  the  bill  may  have  acquired  by  the  symbolical  delivery 
of  the  property  to  him." 

§  256.  Bill  of  lading  to  consignee  with  draft  attached. — It 
is  a  customary  course  of  business  for  the  shipper  or  owner  of 
the  property  to  consign  the  property  shipped  to  some  person 
upon  payment  of  draft  attached,  intending  thereby  to  consign 
the  property  to  such  person  as  security  for  the  amount  paid 
upon  the  draft,  or  to  transfer  to  him  the  title  of  the  property. 
Now,  if  in  such  case  the  consignee  accepts  and  pays  the  draft 
accompanying  the  bill  of  lading,  the  title  of  the  property  will 
vest  in  him  to  the  extent  of  the  intention  of  the  parties,  and  the 
consignor  cannot  defeat  his  interest  in  the  property  by  assign- 
ment to  a  third  person;  but  if  the  consignee  refuse  to  accept 
the  draft,  then  in  such  case  the  consignor  may  confer  the  title 
to  the  property  upon  some  other  person,  or  may  pledge  the 
same  as  security.^* 

28  In  Marine  Bank  v.  Wright,  48  the  acceptance  of  the  draft;  upon 
N.  Y.  1,  it  was  held:  "Where  the  such  acceptance  the  title  passes 
consignor  of  property,  upon  its  to  the  acceptor;  but  upon  refusal 
shipment  and  before  delivery,  to  accept,  the  title  continues  un- 
draws a  bill  of  exchange  upon  the  impaired,  and  upon  the  receipt  by 
consignee  and  procures  the  same  the  consignee  of  the  property  and 
to  be  discounted  at  a  bank  upon  its  conversion,  he  is  liable  to  the 
the  security  of  the  bill  of  lading  bank  for  the  money  advanced 
which  is  transferred  and  deliv-  upon  it."  Michigan  Cent.  Ry.  Co. 
ered  with  it,  the  bank  acquires  v.  Phillips,  60  111.  190;  Illinois 
title  to  the  property  described  in  Cent.  Ry.  Co.  v.  Southern  Bank, 
the  bill  of  lading,  conditional  upon  etc.,    41    111.    App.    287;     Chicago 


§    257.]  NON-NEGOTIABLE  AND  QUASI-NEGOTIABLE.  243 

§  257.  A  bill  of  lading,  how  far  negotiable. — As  we  have 
seen,  a  bill  of  lading  is  a  contract,  among  other  things,  whereby 
the  carrier  engages  to  deliver  the  goods  to  the  consignee  men- 
tioned in  the  bill.  As  has  been  said,  bills  of  lading  are  re- 
garded as  so  much  cotton,  grain,  iron  or  other  articles  of  mer- 
chandise described  in  them.  The  merchandise  is  very  often 
sold  or  pledged  by  the  transfer  of  the  bills  which  cover  it.  But 
they  are  not  negotiable  to  the  extent  that  bills  of  exchange  and 
promissory  notes  are  negotiable;  they  are,  in  other  words,  very 
different  from  bills  of  exchange  and  promissory  notes,  answer- 
ing a  different  purpose  and  performing  different  functions. 
And  it  has  been  held  that  even  the  statute  of  a  state  which  un- 
dertakes to  make  them  negotiable  by  indorsement  and  delivery, 
or  negotiable  in  the  same  manner  as  bills  of  exchange  and 
promissory  notes  are  negotiable,  thus  undertaking  to  change 
totally  their  character  and  put  them  in  all  respects  upon  the 
same  footing  as  negotiable  bills  and  notes,  would  not  be  suffi- 
cient to  make  them  negotiable  in  the  sense  that  commercial  paper 
is  negotiable  by  the  law  merchant.  This  question  was  before 
the  supreme  court  of  the  United  States  in  Shaw  v.  Railroad 
Co.^^  Strong,  J.,  delivering  the  opinion,  said:  "It  cannot  be, 
therefore,  that  the  statute  which  made  them  negotiable  by  in- 
dorsement and  delivery,  or  negotiable  in  the  same  manner  as 
bills  of  exchange  and  promissory  notes  are  negotiable,  intended 
to  change  totally  their  character,  put  them  in  all  respects  on 
the  footing  of  instruments  which  are  the  representatives  of 
money,  and  charge  the  negotiation  of  them  with  all  the  con- 
sequences which  usually  attend  or  follow  the  negotiation  of  bills 
and  notes.  Some  of  these  consequences  would  be  very  strange, 
if  not  impossible;  such  as  the  liability  of  indorsers,  the  duty  of 
demand  ad  diem,  notice  of  non-deliveyy  by  the  carrier,  etc.,  or 
the  loss  of  the  owner's  property  by  the  fraudulent  assignment 
of  a  thief.  If  these  were  intended,  surely  the  statute  would 
have  said  something  more  than  merely  make  them  negotiable 
by  indorsement.  No  statute  is  to  be  construed  as  altering  the 
common  law  further  than  its  words  import.  It  is  not  to  be 
construed  as  making  any  innovation  upon  the  common  law 
which  it  does  not  fairly  express."     Very  many  of  the  states 

Fifth    Nat.    Bank   v.    Bayley,    115      v.  Pfeiffer,  108  N.  Y.  242;  Peters 
Mass.  228;    Hathaway  v.  Haynes,      v.  Elliott,  78  111.  321. 
124  Mass.  311;    Commercial  Bank  29  101  U.  S.  557,  565. 


244  PLEDGE   OR  PAWN.  [§    259. 

have  undertaken  by  statute  to  introduce  important  changes  of 
the  common-law  doctrine  upon  this  subject. 

§  258.  Who  are  bona  fide  holders  of  bill  of  lading. — It  is  a 
universal  rule,  that  one  to  be  a  bona  fide  holder  must  have  paid 
value.  So  it  may  be  said  first  of  all,  that  a  bona  fide  holder  of 
the  transferred  bill  of  lading  must  have  paid  value  for  the 
property  thus  transferred.  The  transfer  must  be  in  good  faith 
and  without  fraud  on  the  part  of  or  to  the  knowledge  of  the 
transferee ;  and  more  than  that,  it  must  be  without  the  notice  or 
knowledge  of  facts  or  circiunstances,  shown  either  upon  the 
face  of  the  bill  or  by  extrinsic  facts,  that  would  lead  a  reason- 
ably cautious  man  to  investigate,  and  if  investigated  would  lead 
to  the  discovery  of  such  fraud  or  defects  as  would  vitiate  the 
transaction.  One  cannot  be  held  to  be  ignorant  of  facts  which 
by  reasonable  prudence  he  should  know. 

§  259.  Rights  of  bona  fide  holders. — The  bill  of  lading  itself, 
as  agreed  by  all  authorities,  simply  represents  property,  and 
its  transfer  is  but  a  symbolical  transfer  and  delivery  of  prop- 
erty. It  therefore  follows  that  the  transfer  of  the  bill  of  lading 
to  a  bona  fide  purchaser,  or  pledgee,  is  but  a  transfer  of  the 
property  represented  by  the  bill.  The  transaction  can  confer 
no  greater  right  or  privilege  upon  the  transferee  than  would 
be  conferred  by  dealing  directly  with  the  property  without  the 
use  of  the  symbol  —  the  bill  of  lading.  For,  as  we  have  seen, 
the  bill  of  lading  is  not  a  negotiable  instrument  in  the  sense 
and  to  the  extent  of  promissory  notes  and  bills  of  exchange;  it 
does  not  represent  money,  but  simply  represents  the  specific 
property  described  in  it. 

In  Stollenwerck  v.  Thachcr^^  it  was  said:  '*A  bill  of  lading, 
even  when  in  terms  running  to  order  or  assigns,  is  not  negoti- 
able like  a  bill  of  exchange,  but  a  symbol  or  representative  of 
the  goods  themselves;  and  the  rights  arising  out  of  the  transfer 
of  the  bill  of  lading  correspond  not  to  those  arising  out  of  the 
indorsement  of  a  negotiable  promise  for  the  payment  of  money, 
but  to  those  arising  out  of  a  delivery  of  the  property  itself 
under  similar  circumstances."  The  holder  of  a  bill  of  lading, 
either  as  indorsee,  assignee  or  otherwise,  cannot,  unless  by  stat- 
ute the  negotiability  is  enlarged,  by  transfer  of  the  bill  of  lad- 
ing, even  to  a  bona  fide  purchaser  or  pledgee  for  value,  confer 

30  115  Mass.  224;  Shaw  v.  Railway  Co.,  101  U.  S.  557;  Dow  v.  Green, 
24  N.  Y.  638. 


§    260.]  NON-NEGOTIABLE  AND  QUASI-NEGOTIABLE.  245 

any  greater  right  or  better  title  than  he  himself  has;  and  so  if 
the  transferror  of  the  bill  has  no  title  he  can  confer  none  upon 
his  transferee.^ ^ 

§  260.  Bona  Me  holder  from  agent  of  owner  or  one  having 
apparent  title. — A  ho7ia  fide  purchaser  or  pledgee  obtaining 
his  interest  in  the  property  through  purchase  from,  or  pledge  by 
the  authorized  agent  of  the  owner,  would  stand  in  no  different 
position  than  he  would  if  he  had  purchased  or  obtained  his 
pledge  from  the  owner  himself.  But  if  it  should  transpire  that 
the  transferror  was  a  special  agent  of  the  owner,  that  is, 
had  the  property  only  for  a  specific  purpose  and  was  not  a 
general  agent  of  the  owner,  and  the  pledge  or  transfer  was  not 
in  the  execution  or  along  the  line  of  the  ordinary  business  of 
the  agency  or  the  carrying  out  of  the  specific  purpose,  then 
in  such  case  no  title  or  legal  interest  would  be  conferred  upon 
the  hona  fide  holder;  but  if  the  owner  of  the  property  had  con- 
ferred upon  the  person  from  whom  the  hona  fide  purchaser  or 
pledgee  had  obtained  his  interest  the  apparent  right  to  the  prop- 
erty as  owner,  or  the  apparent  right  to  dispose  of  the  prop- 
erty, then  in  such  case  the  owner  would  be  estopped  from  claim- 
ing title  as  against  such  iona  fide  purchaser  or  pledgee.  This 
doctrine  rests  upon  the  principle  of  estoppel;  the  owner  being 
estopped  from  asserting  any  title  in  himself  that  would  be  an- 
tagonistic to  the  title  or  interest  he  has  conferred.  "A  ho7ia 
fide  holder  can  only  resist  the  claim  of  the  owner  of  the  prop- 
erty by  establishing  an  equitable  estoppel  founded  upon  the 
acts  of  the  owner.  It  is  the  application  of  that  rule  by  which, 
as  between  two  persons  equally  innocent,  a  loss  resulting  from 
the  fraudulent  acts  of  another  shall  rest  upon  him  by  whose 
acts  and  omissions  the  fraud  has  been  made  possible.  This 
rule,  general  in  its  terms,  only  operates  to  protect  those  who, 
in  dealing  w^ith  others,  exercise  ordinary  caution  and  prudence, 
and  who  deal  in  the  ordinary  way  and  in  the  usual  course  of 
business,   and  upon  the  ordinary  evidences  of  right  and  au- 

31  Pollard  V.  Vinton,  105  U.  S.  457;  Farmers' Nat.  Bank  v.  Logan, 
S;  Jasper  Trust  Co.  v.  Kansas  74  N.  Y.  568;  Saltus  v.  Everett,  20 
City  R.  Co.,  99  Ala.  416,  42  Am.  Wend.  267,  32  Am.  Dec.  541; 
St.  Rep.  75;  Haas  v.  Kansas  City  Farmers,'  etc.,  Nat.  Bank  v.  Has- 
R.  Co.,  81  Ga.  792;  Burton  v.  Cur-  selton,  78  N.  Y.  104;  Shaw  v.  Rail- 
yea,  40  111.  320,  89  Am.  Dec.  350;  way  Co.,  101  U.  S.  557. 
Evansville  R.  Co.  v.  Irwin,  84  Ind. 


246 


PLEDGE   OR   PAWN. 


[§  260. 


thority  in  those  with  whom  they  deal,  and  as  against  those  who 
have  voluntarily  conferred  upon  others  the  usual  evidences  or 
indicia  of  ownership  of  property,  or  an  apparent  authority  to 
deal  with  and  dispose  of  it.  In  such  case,  for  obvious  rea- 
sons, the  law  raises  an  equitable  estoppel,  and,  as  against  the 
real  owner,  declares  that  the  apparent  title  and  authority  which 
exists  by  his  act  or  admission  shall  quo  ad  persons  acting  and 
parting  with  value  upon  the  faith  of  it,  stand  for  and  be  re- 
garded as  the  real  title  and  authority.  Two  things  must  concur 
to  create  an  estoppel  by  which  an  owner  may  be  deprived  of 
his  property  by  the  act  of  a  third  person,  without  his  assent, 
under  the  rule  now  considered:  (1)  The  owner  must  clothe  the 
person  assuming  to  dispose  of  the  property  with  the  apparent 
title  to  or  authority  to  dispose  of  it;  and  (2)  the  person  alleg- 
ing the  estoppel  must  have  acted  and  parted  with  value  upon 
the  faith  of  such  apparent  ownership  or  authority,  so  that  he 
will  be  the  loser  if  the  appearances  to  which  he  trusted  are  not 
real.  In  this  respect  it  does  not  differ  from  other  estoppels 
in  pais. ' '  ^^ 


32  Barnard  v.  Campbell,  55  N. 
Y.  456.  In  the  case  of  Newhall  v. 
C.  P.  R.  R.  Co.,  51  Cal.  345,  it  was 
held  that  "if  the  owner  of  goods 
sells  the  same  on  credit  and  ships 
them  on  a  railroad  to  the  vendee 
as  consignee  with  bills  of  lading 
in  the  usual  form,  and  while  the 
goods  are  in  transit  the  vendee 
becomes  insolvent,  and  the  vendor 
notifies  the  railroad  company  that 
he  stops  the  goods;  and  if  after 
such  notification  the  vendee  in- 
dorses the  bill  of  lading  in  the 
usual  course  of  business  to  a  third 
person,  who  in  good  faith,  and 
without  knowledge  of  the  insolv- 
ency, or  of  such  notification,  ad- 
vances money  thereon,  to  be  re- 
paid out  of  the  proceeds  of  the 
goods  to  be  sold  by  him  at  auc- 
tion, the  assignee,  on  tender  of 
freight  and  charges,  is  entitled  to 
receive  the  goods  from  the  car- 
rier, as  against  the  vendor.     The 


court  in  the  opinion  says  that  "if 
the  bill  of  lading  is  assigned,  and 
the  legal  title  passes  to  a  hona 
fide  purchaser  for  a  valuable  con- 
sideration before  the  right  of 
stoppage  is  exercised,  the  lien  of 
the  vendor  ceases  as  against  the 
assignee,  on  the  well  known  prin- 
ciple that  a  secret  trust  will  not 
be  enforced  as  against  a  tona  fide 
holder  for  value  of  the  legal  title. 
In  such  case,  if  the  equities  of 
the  vendor  and  assignee  be  con- 
sidered equal  (and  this  is  cer- 
tainly the  light  most  favorable  to 
the  vendor  in  which  the  transac- 
tion can  be  regarded),  the  rule 
applies  that  where  the  equities 
are  equal  the  legal  title  will  pre- 
vail. The  vendor  has  voluntarily 
placed  in  the  hands  of  the  vendee 
a  muniment  of  title,  clothing  him 
with  the  apparent  ownership  of 
the  goods;  and  a  person  dealing 
with  him  in  the  usual  course  of 


§  262.]  non-negotiable  and  quasi-negotiable.  247 

The  Warehouse  Receipts. 

§  261.  The  warehouse  receipt  as  collateral. — The  warehouse 
receipt  is  the  evidence  that  certain  property  therein  described 
is  in  the  care  and  custody  of  the  warehouseman,  held  subject  to 
the  order  of  the  bailor  or  owner,  and  like  the  bill  of  lading  stands 
as  a  symbol  for  the  property  itself.  It  represents  grain  or  cot- 
ton, or  whatever  property  it  describes,  and  the  fact  of  its  pos- 
session is  evidence  of  ownership  of  the  property.  For,  as  we 
have  seen,^^  in  due  course  of  business  the  warehouseman  who 
is  the  custodian,  on  receipt  of  the  property  for  storage,  issues 
the  receipt  or  evidence  of  the  possession  of  the  property  to  the 
bailor,  and  by  it  he  says  to  the  world  that  upon  the  delivery  of 
this  receipt  to  him,  and  payment  of  charges  for  storage,  he  will 
deliver  to  the  rightful  owner,  or  holder  of  the  receipt,  the  prop- 
erty itself.  Then  we  may  say  of  this,  as  has  been  said  of  other 
such  like  paper,  the  warehouse  receipt,  while  not  negotiable  to 
the  extent  of  standing  for  a  sum  of  money,  or  so  that  it  will  pass 
from  hand  to  hand  as  commercial  paper,  and  subject  to  all  the 
rules  and  regulations  imposed  upon  such  paper  by  the  law  mer- 
chant, it  is  at  least  quasi-negotiable,  and  often  enters  into  large 
business  transactions,  because,  by  the  custom  of  trade,  it  stands 
for  the  property  or  thing  that  is  stored  with  the  warehouse- 
man, which  will  be  delivered  upon  the  due  presentation  of  the 
receipt.  It  may,  however,  be  said  that  this  receipt  has  a  property 
value  in  itself,  not  represented  in  money,  but  by  the  property  or 
chattels  which  are  in  storage.  Therefore  the  warehouse  receipt 
may  be  the  subject  of  a  pledge. 

§  262.  Delivery  of  the  receipt  required — Indorsement  in 
blank. — To  the  making  of  a  valid  pledge,  delivery  and  accep- 
tance are  requisites.  Usually  it  is  duly  assigned  by  the  bailor 
named  in  the  receipt,  to  the  person  who  is  the  pledgee;  but  like 
the  bill  of  lading  it  is  not  necessary  that  there  should  be  an  as- 
signment of  the  receipt  fully  and  completely  written  out.  In- 
dorsement in  blank  with  actual  delivery  is  enough ;  for  the  right- 
ful holder  may  write  over  the  indorsement  in  blank  a  full  and 

business,    who    take    an    assign-  signable,  tias  a  superior  equity  to 

ment  for  a  valuable  consideration,  that  of  the  vendor  asserting  a  re- 

without    notice    of    such    circum-  cent  lien,  known  perhaps  only  to 

stances  as  render  the  bill  of  lad-  himself  and  the  vendee." 

ing   not   fairly   and    honestly    as-  33  Ante,  §  174. 


248  PLEDGE  OR  PAWN.  [§    264. 

complete  assignment,  and  in  this  way  convert  the  property 
which  it  represents  to  his  possession.  Indeed,  this  is  the  mode 
most  usually  adopted  when  it  is  desired  to  pledge  a  warehouse 
receipt  as  collateral  security ;  for  in  such  case  it  is  not  the  object 
or  desire  of  the  parties  to  disturb  the  custody  of  the  property 
itself,  or  that  the  pledgee  should  take  actual  manual  possession 
of  the  property.  The  receipt  may  represent  a  large  quantity 
of  grain,  for  example,  stored  in  a  warehouse;  the  object  of  the 
pledgor  is  simply  to  use  this  receipt,  the  evidence  of  his  owner- 
ship, as  security  for  a  loan  of  .money,  or  as  collateral  to  his 
note  or  other  obligation;  he  has  no  intention  of  transferring 
the  title  to  the  property.  Upon  payment  of  the  debt,  or  fulfill- 
ment of  the  obligation,  it  is  incumbent  upon  the  pledgee  to  re- 
turn the  receipt  which  is  the  subject  of  the  pledge;  and  so,  be- 
cause of  the  convenience  in  doing  business,  the  custom  has 
grown  up  to  simply  transfer  to  the  pledgee  the  receipt  for  the 
stored  property  indorsed  in  blank,  to  be  returned  upon  the  full 
performance  of  the  obligation  for  which  it  is  pledged,  and 
generally  without  any  assignment  being  fully  written  over  the 
indorsement  in  blank;  for  the  delivery  of  the  receipt  thus  in- 
dorsed, with  the  intention  of  pledging  the  same,  has  the  same 
effect  as  the  delivery  of  the  property  itself.^* 

§  263.  Pledge  created  by  mere  delivery  of  receipt. — 

There  is  no  particular  form  necessary  for  the  transfer  of  the 
receipt.  The  mere  delivery  of  the  receipt,  with  the  intention  of 
creating  the  pledge,  as  between  the  parties,  is  enough  to  create 
an  equitable  lien,  and  by  virtue  of  it  the  pledgee  can  hold  the 
property  described  in  the  receipt  and  the  owner  or  pledgor 
would  be  estopped  from  asserting  any  right  inconsistent  with  the 
pledge.^^ 

§  264.  Statutes  of  states  with  reference  to  pledgee  of  ware- 
house receipt. — Many  of  the  states  have  enacted  statutes  regu- 
lating the  transfer  of  warehouse  receipts,  and  it  will  be  neces- 
sary to  examine  the  statute  of  the  particular  state  where  the 
transaction  occurs.  We  have  not  the  space  to  notice  and  quote 
these  statutes  here.     It  may  be  said,  however,  with  reference  to 

3*  Jones  on  Pledges,  sec.  280.  of  the  warehouse  receipt  for  cot- 
See  cases  cited.  Freiburg  v.  Drey-  ton  is  in  effect  delivering  the  cot- 
fus,  135  U.  S.  478;  Burton  v.  Cur-  ton  itself. 

yea,  40  111.  320.    In  Citizens'  Bank  35  Blanc  v.  Germania  Nat.  Bank, 

V.  Peacock,  103  Ga.  171,  29  S.  E.  114  La.  739,  38  So.  537. 
752,  it  was  held  that  the  delivery 


§    266.]  NON-NEGOTIABLE  AND  QUASI-NEGOTIABLE.  249 

these  statutes,  that  although  they  may  purport  to  make  the 
warehouse  receipt  negotiable,  all  that  can  in  fact  be  done  is  to 
cut  off  any  defense  which  the  indorser  may  have.  The  holder 
of  the  receipt  takes  no  better  title  than  he  would  had  the  goods 
and  chattels  described  been  actually  delivered  to  him;  and  to 
allow  the  transfer  of  the  receipt  merely  to  pass  an  absolute 
title  without  this  limitation  would  enable  one  fraudulently  de- 
positing the  goods  of  another  to  dispose  of  them  and  confer  a 
valid  title,  even  as  against  the  true  owner,  by  obtaining  a  ware- 
house receipt  in  his  own  name.  Certainly  this  would  be  against 
public  policy.^^ 

§  265. If  the  receipt  is  made  to  bearer. — It  goes  without 

saying  that  if  the  receipt  stipulates  that  the  property  is  to  be 
delivered  to  bearer,  then,  in  order  to  transfer  it,  it  would  not 
be  necessary  to  indorse  the  receipt,  but  the  mere  delivery  of  the 
receipt  w^ould  be  sufficient  to  transfer  the  title  to  the  property 
if  it  was  made  with  that  intent.  It  therefore  follows  that  such 
a  receipt  may  be  made  the  subject  of  a  pledge  by  merely  de- 
livering the  receipt  with  intention  to  pledge  it  as  collateral  se- 
curity for  the  payment  of  the  debt  or  the  fulfilling  of  the  obli- 
gation.^^ 

Insurance  Policies. 

§  266.  Insurance  policies  as  collateral. — An  insurance  policy 
that  is  in  force  has  a  property  value,  depending,  of  course,  very 
largely  upon  the  stipulations  in  the  policy;  and  such  a  policy 
is  often  made  the  subject  of  a  pledge;  as,  for  example,  a  fire 
insurance  policy  is  often  assigned  with  a  real-estate  mortgage 

36  Warehouse    receipts    are   not  remain  in   the  possession  of  the 

negotiable  instruments  in  a  com-  warehouseman.     In  fact,  the  pos- 

mercial    sense.      And    in    the    ab-  session  of  the  receipt  is  in  legal 

sence  of  a  right  of  property  in  the  effect  the  possession  of  the  goods, 

consignee  and  a  power  to  sell,  the  and    enables    the    holder    of    the 

consignee,    by    indorsement,    can-  goods  to  transfer  his  title  to  the 

not  confer  title  to  the  property  as  goods   without  an   actual  manual 

against  the  true  owner.     Dows  v.  delivery  of  the  goods  themselves. 

Perrin,  16  N.  Y.  333.     Warehouse  They  did  not  add  to  his  title,  they 

receipts   at   most   only   represent  simply   gave  him  the   possession, 

the  goods,  and  may  be  used  upon  Lickbarrow     v.     Mason,     Smith's 

a  sale   as   a  symbolical   delivery.  Lead.  Cas.  755;  Second  Nat  Bank 

3  Ellis  &  Bl.  622.     A  transfer  of  v.  Walbridge,  19  Ohio  St.  419. 
the  receipt  operates  as  a  delivery  37  Jones  on  Pledges,  sec.  301 

of  the  goods  so  long  as  the  goods 


250  PLEDGE  OR  PAWN.  [§    267. 

given  upon  the  same  premises;  and  a  stipulation  written  upon 
the  policy  with  the  consent  of  the  company  and  by  its  agent, 
making  any  loss  payable  to  the  mortgagee  to  the  extent  that 
his  interest  may  appear,  creates  a  pledge  to  the  beneficiary  in- 
terest of  the  policy.  A  life  insurance  policy,  fully  paid  up 
or  otherwise,  is  often  pledged  to  the  lender  of  money,  or  as  se- 
curity for  the  performance  of  an  obligation  by  the  owner  of  the 
policy;  and  as  we  shall  see,  the  pledgee  thereupon  obtains  an 
interest  in  the  policy  which  the  company  must  recognize.  The 
fact  of  the  policy  being  the  subject  of  a  pledge  is  not  as  trouble- 
some as  is  the  procedure  in  given  cases  to  create  the  pledge 
and  determine  the  liability. 

§  267.  Delivery  a  requisite. — A  pledge,  from  its  very 

nature,  as  we  have  often  seen,  requires  a  delivery  and  accept- 
ance for  the  purpose  and  with  the  intention  of  creating  a 
pledge.  The  same  rule  obtains  in  the  pledging  of  policies  of  in- 
surance; the  pledgee  must  have  the  property  pledged  in  his 
possession  and  control,  and  a  mere  promise  to  deliver  the  prop- 
erty is  not  enough.  If  such  a  promise  were  founded  upon  a 
valuable  consideration,  a  contract  to  pledge  might  furnish  a 
cause  of  action  if  the  pledgor  failed  to  perform  his  contract; 
but  that  question  we  are  not  discussing.  The  promise  to  pledge 
does  not  create  a  pledge;  the  pledgee  must  have  possession  of 
the  property.  And  so  it  has  been  held  that  the  mere  promise 
of  a  policy  as  collateral  is  not  a  good  delivery.^^ 

The  vice-chancellor,  in  Spencer  v.  Clark  (cited  and  quoted 
from  in  the  note),  calls  attention  to  the  familiar  doctrine  "that 
as  between  two  persons  whose  equitable  interests  are  of  precisely 
the  same  nature  and  quality,  and  in  that  respect  precisely  equal, 

38  Spencer  v.  Clark,  L.  R.  9  Ch.  mistake,  and  promising  forthwith 
Div.  137.  The  holder  of  a  policy  to  deliver  it  to  B.,  took  the  loan 
of  insurance  on  his  own  life  de-  and  assigned  the  memorandum 
posited  it  with  A.  by  way  of  equi-  that  he  had  deposited  the  policy 
table  mortgage  to  secure  a  loan.  with  B.,  and  then  undertook,  on 
A.  retained  the  policy,  but  gave  request,  to  execute  to  B.  an  equi- 
no  notice  to  the  company;  B.  table  mortgage  of  it.  B.  gave  to 
afterwards,  in  ignorance  of  this  the  company  notice  of  his  loan 
prior  mortgage,  agreed  to  loan  and  memorandum  of  deposit,  and 
money  to  the  policy-holder  upon  frequently  applied  to  the  policy- 
a  deposit  of  the  same  policy,  and  holder  for  the  policy;  but  the 
the  policy-holder  alleging  that  he  policy-holder  made  various  ex- 
had   left   the    policy   at   home   by  cuses  for  not  handing  it  over,  and 


§    269.]  NON-NEGOTIABLE  AND  QUASI-NEGOTIABLE.  251 

the  possession  of  the  deeds  gives  the  better  equity."  And  so 
the  authorities  and  adjudicated  cases  on  this  subject  are  replete 
with  the  doctrine  that  to  effect  a  valid  pledge  of  a  policy  of  in- 
surance, delivery  and  acceptance,  with  the  intention  of  creating 
the  pledge,  is  an  absolute  requisite;  except,  of  course,  in  cases 
where  a  regular  assignment  has  been  fully  made  for  the  pur- 
pose of  pledging  the  policy,  and  the  company  has  been  noti- 
fied, and  a  transfer  made  on  their  books;  or  in  case  the  transfer 
has  been  made,  the  company  notified,  and  a  custodian  agreed 
upon  by  all  the  parties  for  the  purpose  of  creating  the  pledge. 
But  there  must  be  something  that  will  operate  to  place  the 
policy  under  the  obligation  of  the  pledge,  and  in  the  control 
and  custody  either  of  the  pledgee  or  his  agent. 

§  268. How  delivered. — There  is  no  question  that  if  the 

policy  is  assigned  and  delivered  to  the  pledgee,  the  company 
notified,  and  the  assignment  entered  upon  its  books,  for  the  pur- 
pose of  creating  a  pledge,  that  a  valid  pledge  of  the  policy  ia 
made;  and  in  case  of  loss,  recovery  could  be  had  against  the 
company  by  the  pledgee.  A  very  much  less  formal  transfer, 
however,  is  sufficient.  The  courts  have  held  that  a  pledge  of 
the  policy  may  be  created  by  indorsement  in  blank  and  de- 
livery. 

§  269.  By  indorsement  in  blank  and  delivery — An  indorse- 
ment in  blank,  and  delivery  and  acceptance  for  the  purpose  of 
creating  a  pledge,  has  been  held  to  be  sufficient.  In  the  case 
of  Norwood  v.  Guerdon  ^®  the  supreme  court  of  Illinois  very 
emphatically  laid  down  this  doctrine.  That  was  a  case  where 
the  husband  had  procured  his  life  to  be  insured  for  the  benefit 
of  his  wife.  She  afterwards  indorsed  the  policy  to  him  in 
blank,  left  it  in  his  possession,  and  he  secured  a  loan  upon  the 
policy,  pledging  it  as  collateral  security.  The  court  say: 
"Armed  with  this  evidence  of  his  right  to  pledge  the  instru- 
ment, he  goes  upon  the  money  market  and  does  pledge  it,  first 
to  one  person  and  then  to  another,  and  by  such  pledge  raises 
money  and  pays  his  debts.     It  is  not  in  evidence,  and  we  cannot 

died  leaving  it  in  the  possession  security,  and  that  the  title  of  A. 
of  A.  Held,  that  the  circum-  as  in  possession  of  the  policy 
stances  of  the  case  were  such  as  must  prevail  over  that  of  B.,  al- 
to put  B.  on  inquiry  as  to  the  though  B.  did,  and  A.  did  not, 
time  of  the  loan,  and  to  fix  him  give  notice  to  the  company, 
with    constructive    notice    of   A.'s  39  go  111.  253. 


252  PLEDGE  OR  PAWN.  [§    270. 

presume,  that  the  wife  ever  had  any  interest  in  this  policy  from 
having  contributed  from  her  separate  estate  toward  the  pay- 
ment of  the  premium.  .  .  .  But  whatever  her  interest,  by 
indorsing-  the  policy  in  blank  and  delivering  it  to  her  husband 
she  clothed  him  with  all  necessary  evidence  of  a  power  to  pledge 
the  instrument  by  filling  up  her  blank  assignment,  and  we  should 
be  opening  a  door  to  the  grossest  fraud  if  we  were  to  permit 
the  wife,  after  having  done  all  this,  to  come  forward  and  claim 
that  her  husband  had  no  right  to  assign  the  instrument.  These 
assignments  are  valid,  and  are  recognized  by  the  companies. 
They  are  also  of  daily  occurrence  in  the  way  of  collateral  se- 
curity ;  and  where  a  policy  is  made  payable  to  the  wife,  and  she 
indorses  it  in  blank,  and  the  husband  pledges  it,  we  are  wholly 
at  a  loss  to  conceive  upon  what  ground  it  can  be  claimed  that 
such  an  assignment  is  not  valid  in  a  court  of  equity. ' '  The  in- 
dorsement in  blank  and  the  delivery  of  the  policy  to  secure  the 
debt,  intending  it  for  security,  the  giving  up  of  the  amount 
loaned  to  the  pledgor,  or  the  receiving  it  and  furnishing  the 
consideration  by  the  pledgee,  will  make  out  a  case  of  pledge, 
and  will  give  to  the  pledgee  all  the  title,  right  and  privileges 
to  the  extent  of  his  pledge  which  the  pledgor  had. 

Notes,  Bonds,  ]\Iortgages. 

§  270.  Notes  and  mortgages,  and  bonds  and  mortgages. — A 
note  or  bond  secured  by  a  mortgage  carries  with  it  the  mort- 
gage security;  so  when  the  note  by  indorsement  and  delivery, 
or  by  mere  delivery  when  indorsed  in  blank  or  payable  to 
bearer,  is  transferred,  it  carries  with  it  in  equity  the  mortgage 
security.  It  is  not  necessary  that  there  should  be  an  assign- 
ment of  the  mortgage ;  the  indorsee  of  the  note  is  entitled  to  the 
benefit  of  the  mortgage  unless  there  is  special  provision  to  the 
contrary. 

In  Carpenter  v.  Longan^°  it  was  held  that  "the  assignment 
of  a  note  underdue  raises  the  presumption  of  the  want  of  notice, 

40  16  Wall.  271;  Ober  v.  Gallag-  by  the  payee,  the  law  presumes 

her,   93  U.    S.   199;    New  Orleans  that  they   were,   when   underdue, 

Canal  and  Banking  Co.  v.   Mont-  taken  in  good  faith  by  the  trans- 

gomery,  95  U.  S.  16.     "In  the  ab-  feree    without   notice   of   any   in- 

sence    of    proof    to    show    when  firmity  attaching  to  them,  and  he 

promissory  notes  were  transferred  is   entitled   to   the  benefit  of  the 


§    270.]  NON-NEGOTIABLE  AND  QUASI-NEGOTIABLE.  253 

and  this  presumption  stands  until  it  is  overcome  by  sufficient 
proof.  The  case  is  a  different  one  from  what  it  would  be  if  the 
mortgage  stood  alone,  or  the  note  was  non-negotiable,  or  had 
been  assigned  after  maturity.  The  question  presented  for  our 
determination  is  whether  an  assignee,  under  the  circumstances 
of  this  case,  takes  the  mortgage  as  he  takes  the  note,  free  from 
the  objections  to  which  it  was  liable  in  the  hands  of  the  mort- 
gagee. We  hold  the  affirmative.  The  contract  as  regards  the 
note  was  that  the  maker  should  pay  it  at  maturity  to  any  bona 
fide  indorsee,  without  reference  to  any  defenses  to  which  it 
might  have  been  liable  in  the  hands  of  the  payee.  The  mort- 
gage was  conditioned  to  secure  the  fulfillment  of  that  contract. 
To  let  in  such  a  defense  against  such  a  holder  would  be  a  clear 
departure  from  the  agreement  of  the  mortgagor  and  mortgagee, 
to  which  the  assignee  subsequently,  in  good  faith,  became  a 
party.  If  the  mortgagor  desired  to  reserve  such  an  advantage, 
he  should  have  given  a  non-negotiable  instrument.  If  one  of 
two  innocent  persons  must  suffer  by  deceit,  it  is  more  consonant 
to  reason  that  he  who  'puts  trust  and  confidence  in  the  deceiver 
should  be  a  loser  rather  than  a  stranger.'  .  .  .  The  trans- 
fer of  the  note  carries  with  it  the  security,  without  any  formal 
assignment  or  delivery,  or  even  mention  of  the  latter.  If  not 
assignable  at  law,  it  is  clearly  so  in  equity.  When  the  amount 
due  on  the  note  is  ascertained  in  the  foreclosure  proceeding, 
equity  recognizes  it  as  conclusive,  and  decrees  accordingly. 
Whether  the  title  of  the  assignee  is  legal  or  equitable  is  imma- 
terial. The  result  follows  irrespective  of  that  question.  The 
process  is  only  a  mode  of  enforcing  a  lien.  .  .  .  All  the  au- 
thorities agree  that  the  debt  is  the  principal  thing  and  the  mort- 
gage an  accessory.  Equity  puts  the  principal  and  accessory 
upon  a  footing  of  equality,  and  gives  to  the  assignee  of  the  evi- 
dence of  the  debt  the  same  rights  in  regard  to  both.  There  is 
no  departure  from  any  principle  of  law  or  equity  in  reaching 
this  conclusion.  There  is  no  analogy  between  this  case  and  one 
where  a  chose  in  action  standing  alone  is  sought  to  be  enforced. 
The  fallacy  which  lies  in  overlooking  this  distinction  has  mis- 
deed of  trust  given  to  secure  Mich.  395;  Cicotte  v.  Gagnier,  2 
them."  Powell  on  Mortgages,  Mich.  381;  Pierce  v.  Faunce,  47 
908;  1  Hill  on  Mortgages,  572;  Me.  507;  Taylor  v.  Page,  6  Allen, 
Reeves  v.  Scully,  Walker's  Ch.  86;  Cornell  v.  Hichens,  11  Wis. 
248;     Bloomer    v.    Henderson,     8       368;  Croft  v.  Bunster,  9  Wis.  503. 


254  PLEDGE  OR  PAWN,  [§    271. 

led  many  able  minds,  and  is  the  source  of  all  the  confusion 
that  exists.  The  mortgage  can  have  no  separate  existence. 
When  the  note  is  paid  the  mortgage  expires.  It  cannot  sur- 
vive for  a  moment  the  debt  which  the  note  represents.  This 
dependent  and  incidental  relation  is  the  controlling  considera- 
tion, and  takes  the  case  out  of  the  rule  applied  to  choses  in  ac- 
tion, where  no  such  relation  of  dependence  exists.  Accessoriiim 
non  ducit,  sequitur  principale." 

If  the  debt  is  evidenced  by  a  non-negotiable  bond  the  case 
would  be  different  as  to  equities,  and  the  pledgee  would  be  in 
the  same  position  as  though  a  non-negotiable  security  had  been 
pledged.  Bonds,  however,  are  sometimes  made  negotiable  when 
the  rule  applicable  to  negotiable  paper  would  apply.  If  the 
mortgage,  then,  is  to  secure  the  payment  of  a  negotiable  note 
or  a  negotiable  bond,  it  may  be  transferred  and  delivered,  and 
the  same  rights  and  privileges  would  obtain  in  the  case  of  a 
pledgee  as  in  case  of  a  purchaser ;  and  if  the  note  or  bond  were 
underdue  at  the  time  of  the  pledge,  the  pledgee  would  take  it 
freed  from  equities  of  which  he  had  no  actual  notice;  but  if  the 
mortgage  secured  a  non-negotiable  instrument,  then  the  pledgee 
would  take  it  subject  to  equities  the  same  as  other  non-negotiable 
properties. 

§  271  Mere  delivery  as  a  pledge. — In  either  case  the  note 
and  mortgage,  or  bond  and  mortgage,  may  be  delivered  as  a 
pledge  without  assignment  or  indorsement,  and  the  pledgee 
would  obtain  an  equitable  interest  in  the  security  which  could 
be  enforced.  But  the  note  or  bond  which  represents  the  in- 
debtedness must  be  delivered  with  the  mortgage.  "The  mort- 
gage security  alone,  without  the  personal  evidences  of  debt,  con- 
veys no  right  or  title  to  the  assignee  and  is  a  nullity.  The  mort- 
gage itself,  without  the  debt  to  sustain  it,  has  no  reason  for 
existence;  when  the  debt  is  paid  it  loses  its  vitality  as  a  valid 
instrument.  The  only  effect  of  the  assignment  of  a  mortgage  by 
a  mortgagee,  where  given  to  secure  the  payment  of  negotiable 
collateral  notes  which  have  passed  into  possession  of  third  per- 
sons, indorsees,  for  value,  is  to  create  a  quasi  or  secondary  trus- 
teeship on  the  part  of  the  assignee  in  favor  of  the  indorsees  of 
the  paper,  the  payment  of  which  is  secured  thereby.  And  this 
'rusteeship  is,  iTpon  occasion,  enforced  by  courts  of  equitable 
jurisdiction.     The    assignee    of    a    mortgage    security,    without 


§    273.]  NON-NEGOTIABLE  AND  QUASI-NEGOTIABLE.  255 

more,  obtains  no  title  or  interest  therein."*^  If  the  note  or 
bond,  however,  be  pledged,  it  will  carry  with  it,  as  we  have 
seen,  the  mortgagee  security. 

§  272.  Full,  complete  assignment  and  transfer — A  pledge  or 
a  sale. — The  transfer  of  the  note  and  mortgage  is  not  infre- 
quently made  by  an  absolute  assignment;  nothing  being  shown 
upon  the  face  of  the  transfer  to  indicate  that  it  is  assigned 
merely  as  collateral  security  for  a  debt.  If  it  appears  that  it 
is  a  security  for  the  payment  of  a  debt,  it  would  generally, 
without  any  further  controlling  circumstances,  be  considered  as 
a  pledge  rather  than  an  absolute  transfer  of  title.  At  all  events, 
a  court  of  equity  would  upon  proof  of  the  facts  (and  they  may 
be  proven  by  parol)  decree  the  transfer  to  be  a  pledge  rather 
than  a  sale.  The  maxim  often  quoted  and  relied  upon  applies : 
"Equity  considers  substance  rather  than  form." 

§  273.  Pledge  distinguished  from  chattel  mortgage. — Gen- 
erally a  pledge  is  not  in  w^riting,  but  is  usually  created  by  a 
delivery  of  the  property,  and  continues  so  long  as  the  property 
remains  in  the  possession  of  the  pledgee  for  the  purposes  of  the 
pledge.  It  creates  a  lien  upon  the  property  by  reason  of  the  de- 
livery and  acceptance  for  the  purposes  of  the  pledge.  It  does 
not  pass  the  title  of  the  property  with  a  defeasance  clause,  and 
ceases  when  the  pledgee  gives  up  his  possession  of  the  property. 
Continued  possession  on  the  part  of  the  pledgee  is  a  requisite 
to  a  pledge,  and  when  possession  is  abandoned  the  pledge  will 
be  held  to  be  abandoned.  On  the  other  hand,  a  chattel  mortgage 
is  in  writing,  and  upon  its  face  is  an  absolute  sale  of  the  prop- 
erty with  a  defeasance  clause  covenanting  that  in  case  of  per- 
formance upon  the  part  of  the  mortgagor,  that  is,  payment  of 
the  debt  as  stipulated,  the  sale  shall  be  void.  Possession  in  the 
case  of  a  chattel  mortgage  is  not  a  requisite;  on  the  other  hand, 
the  possession  of  the  property  is  generally  left  with  the  mort- 
gagor. ''The  essential  difference  between  a  mortgage  and  a 
pledge  as  a  matter  of  right  is  that  in  the  one  case  the  title 

41  Colebrooke,  Collateral  Securi-  Dearborn  v.  Taylor,  18  N.  H.  153 

ties,  185;  Wanzer  v.  Carey,  76  N.  Delano    v.    Bennett,    90    111.    533 

Y.     526;     Peters     v.     Jamestown  Watson  v.  Hawkins,  13  Iowa,  547 

Bridge   Co.,   5   Cal.   334;    Jackson  Hamilton  v.  Lubukee,  51  111.  415 

V.  Blodgett,  5  Cow.  205;   Jackson  Bailey  v.   Gould,   Walk.   Ch,  478 

V.  Bronson,  19  Johns.  325;  Mer-  Martin  v.  McReynolds,  6  Mich.  73 
ritt  V.   Bartholick,    36    N.   Y.    44; 


256  PLEDGE   OR  PAWN.  [§    273. 

passes,  in  the  other  it  does  not.  But  the  difference  in  substance 
and  in  fact  is,  that  in  the  case  of  a  pawn  the  possession  of  the 
article  must  pass  out  of  the  pawnor;  in  the  case  of  a  mortgage 
it  need  not;  and  in  determining  whether  an  agreement  is  a 
pledge  or  a  mortgage,  regard  must  be  had  to  these  two  con- 
siderations." ^^ 

In  Tannahill  v.  Tuttle  *^  it  was  held  that  by  a  mortgage  of 
chattels  the  whole  legal  title  of  the  property  passes  to  the  mort- 
gagee conditionally,  and  to  defeat  such  title  the  mortgagor  or 
those  claiming  under  him  must  show  a  performance  of  the  con- 
dition. The  statutes  of  the  states  usually  provide  that  a  chattel 
mortgage,  to  be  effective  as  against  subsequent  dona  fide  mort- 
gagees or  purchasers,  or  creditors  of  the  mortgagor,  must  be 
filed  or  registered  as  provided  by  the  statute,  and  if  it  is  not 
and  there  is  no  actual  notice,  it  will  not  be  valid  except  between 
the  parties.  But  in  ease  of  a  pledge,  there  is  no  such  thing 
required;  the  property  pledged  being  in  the  possession  of  the 
pledgee  is  notice  to  all  the  world  of  his  rights. 

42Haskins  v.  Pattison,  1  Edm.  401;  West  v.  Crary,  47  N.  Y.  425. 

Sel.  Cas.  (N.  Y.)  201;  Schouler  on  433  Mich.  104;   Norten  v.  Bax- 

Bailments  and  Carriers,  sec.  167;  ter,  4  L.  R.  A.  305,  note.     Pledge 

Parshall  v.  Eggert,  54  N.  Y.  18;  distinguished  from  chattel  mort- 

Hauselt   v.   Harrison,    105   TJ.    S.  gage. 


CHAPTER  IV. 


PLEDGOR'S  RIGHTS  AND  LIABILITIES. 


§  274.  The   purpose   of  the  chap- 
ter. 

275.  Pledgor's  rights. 

276.  Pledgor  of  valuable  securi- 

ties— Notes,  bonds,  mort- 
gages, etc. 

277.  The  pledgor  may,  under  cer- 

tain circumstances,  pro- 
tect   the    pledged    prop- 
erty from  injury. 
277o.  Pledgor   may   transfer   the 
title  to  the  property. 

278.  Pledgor's    interest    subject 

to  judicial  process. 

279.  When  the  debt  secured  is 

barred     by     statute     of 
limitation. 

280.  When   will   the   statute   of 

limitations    run    against 
the  pledgor. 

281.  The  pledgor's  right  to  re- 

deem. 

282.  As  to  notice  of  intention  to 

redeem. 

283.  The  pledgor  impliedly  war- 


rants the  title  of  the 
pledged  property. 

284.  Rights,    duties    and   liabili- 

ties of  the  pledgee. 

285.  The  possession. 

286.  The  pledge  an  incident  of 

the  debt  secured  and  as- 
signable. 

287.  Assignment      of      secured 

debt  passes  equitable  in- 
terest in  pledged  prop- 
erty. 

288.  Rights  of  assignee  subject 

to  the  contract  of  pledge. 

289.  May  repledge. 

290.  Right   to   use   the   pledged 

property. 

291.  Expenses  and  profits. 

292.  Liability  for  loss  and  dam- 

age. 

293.  Payment   of   debt   releases 

pledged  property. 

294.  A  tender  of  the  amount  due 

will  discharge  the  lien 
of  the  pledge. 


§  274.  The  purpose  of  the  chapter. — The  rights  and  liabili- 
ties of  the  pledgor  depend  very  largely  upon  the  contract  which 
creates  the  pledge.  It  may  be  varied  as  the  parties  see  fit.^ 
The  general  liability  of  the  pledgor  and  the  pledgee  have  been 


1  Drake  v.  White,  117  Mass.  10, 
13.  The  court  say:  "In  the  pres- 
ent case  the  parties  have  reduced 
their  contract  to  writing,  and 
have  omitted  to  attach  to  the  de- 
fendants' liability  for  the  prop- 
erty any  limitation  whatever.  On 
the  contrary,  their  express  prom- 
ise is  to  do  one  or  the  other  of 


two  things:  either  to  return  the 
property  specifically,  or  to  pay 
for  it  in  money.  There  can  be  no 
doubt  that  if  a  creditor  sees  fit 
to  accept  a  deposit  of  security 
upon  such  terms,  and  to  place 
himself  in  the  position  of  an  in- 
surer of  its  safety,  he  can  legally 
do  so." 


r, 


258  PLEDGE   OR   PAWN.  [§    275. 

more  or  less  noticed  in  preceding  chapters  but  not  fully  dis- 
cussed. In  this  chapter  it  is  our  purpose  to  call  attention  to 
rules  governing  these  rights  and  liabilities,  and  to  notice  some 
of  the  more  important  applications  of  the  rules  to  the  usual  and 
more  common  transactions  of  business;  and  in  this  connection 
it  may  be  said  that  the  reader  must  at  all  times  keep  in  mind 
that  a  pledge  or  pawn  belongs  to  that  class  of  bailments  known 
as  benefit  bailments,  where  ordinary  diligence  is  required  of  the 
parties.  No  matter  what  the  transaction  may  be,  it  it  this  that 
fixes  and  determines  the  rights  of  the  bailor  as  well  as  the  bailee ; 
upon  this  does  their  liability  rest. 

§  275.  Pledgor's  rights. — When  once  the  pledging  of  the 
property  is  completed  and  the  pledgor  has  released  to  the  pledgee 
the  possession  of  the  same,  it  becomes  the  duty  of  the  pledgee 
to  exercise  that  ordinary  care  in  keeping  and  caring  for  the 
property  and  in  carrying  out  the  object  of  the  pledge  that  is 
required  in  all  mutual-benefit  bailments.  It  therefore  follows 
that  the  pledgor  has  the  right  to  demand  and  expect  that  the 
pledged  property  will  be  properly  cared  for;  that  is,  that  it 
will  have  bestowed  upon  it  such  care  as  the  ordinarily  prudent 
man  would  bestow  upon  his  own  property  of  like  kind  and  value 
under  just  such  circumstances.  The  pledgor,  in  other  words, 
has  the  right  to  have  his  property  protected  and  cared  for  to 
he  extent  that  the  particular  property  under  the  circumstances 
naturally  and  ordinarily  requires;  that  is  to  say,  if  it  be  prop- 
erty of  such  kind  as  requires  use  in  order  to  be  properly  cared 
for,  then  that  it  will  receive  such  use  as  its  particular  kind  re- 
quires, and  if  for  want  of  such  use  the  property  is  damaged,  it 
follows  that  the  pledgor  could  sustain  an  action  against  the 
pledgee  for  not  doing  his  duty  in  that  regard.  Whatever  is,  under 
ordinary  circumstances,  required  to  be  done  in  order  to  preserve 
his  rights  and  interests,  the  pledgor  has  a  right  to  demand  be 
done  by  the  pledgee.  The  pledgor  is  entitled  to  have  the  property 
so  used  and  protected  that  its  value  shall  not  be  impaired,  and 
^his  rests  somewhat  upon  the  fact  that  during  the  existence  of 
the  pledge  the  property  is  in  the  exclusive  possession  of  the 
pledgee,  and  it  cannot  be  cared  for  or  protected  by  the  owner 
thereof,  as  he  is  not  entitled  to  its  custody.  As,  for  example, 
if  the  pledged  property  be  collateral  security  in  the  hands  of 
the  pledgee,  the  pledgor  has  the  right  to  have  such  securities 
protected,  and  if  the  pledgee,  by  neglect  or  want  of  due  care. 


§  276.] 


pledgor's  rights  and  liabilities. 


259 


loses  the  securities,  or  fails  to  enforce  them  against  the  persons 
liable  upon  them,  and  thereby  their  value  is  lost  or  impaired, 
the  pledgor  would  have  an  action  against  the  pledgee  for  such 
loss  or  damage.^ 

§  276.  Pledgor  of  valuable  securities — Notes,  bonds,  mort- 
gages, etc. — In  these  days  of  business  activity  it  often  happens 
that  a  borrower  places  large  amounts  of  valuable  securities,  such 
as  notes,  bonds,  mortgages,  stocks,  etc.,  in  the  hands  of  his 
banker,  or  other  person  from  whom  he  borrows  money  to  secure 
his  indebtedness.  To  such  creditors  who  thus  become  bailees 
of  the  securities,  this  rule  of  ordinary  diligence  applies;  they 
are  bound  to  exercise  that  degree  of  sound  judgment  which  the 
ordinarily  prudent  business  man  would  exercise  under  like  cir- 
cumstances in  the  carrying  out  of  the  purposes  of  the  trust  that 
is  imposed  upon  them  by  the  bailor,  and  if  through  negligence 
they  fail  to  do  this  and  it  results  in  damage  to  the  pledgor,  they 
will  be  held  liable.^ 


2  Where  a  note  is  pledged  as 
collateral  security  to  a  debt  the 
pledgor  is  relieved  from  collect- 
ing it,  the  pledgee  being  entitled 
to  receive  payment  of  it,  and  col- 
lect it  when  due.  C.  H.  Larkin  Co. 
V.  Dawson  (Tex.  Civ.  App.  1904), 
83  S.  W.  832;  Hamilton's  Ex'r  v. 
Hamilton,  27  Ky.  L.  Rep.  298,  84 
S.  W.  1156;  Scott  v.  First  Nat. 
Bank  (Ind.  Ter.  1904),  82  S.  W. 
751;  Roberts  v.  Farmers'  Bank,  25 
Ky.  L.  Rep.  2296,  80  S.  W.  441; 
Chemical  Nat.  Bank  v.  Armstrong, 
50  Fed.  798;  Ramsey  v.  Laidley, 
34  W.  Va.  731,  26  Am.  St.  R.  935. 
Where  pledgee  holds  collateral  to 
secure  debt  and  it  is  lost  through 
the  negligence  of  pledgee  to  col 
lect  it,  he  is  liable  to  pledgor 
Hanna  v.  Holton,  78  Pa.  St.  336 
21  Am.  Rep.  20;  McQueen's  Ap 
peal,  104  Pa.  St.  595,  49  Am.  Rep 
592;  O'Brien  v.  Mofflt,  133  Ind 
660,  36  Am.  St.  Rep.  566.  Pledgee 
cannot  sell  note  but  is  bound  to 
collect  it.   Joliet  Iron  Co.  v.  Scioto, 


etc.,  Co.,  82  111.  548,  25  Am.  Rep. 
341. 

3  Northwest  National  Bank  v. 
Thompson  Mfg.  Co.,  71  Fed.  113. 
"A  person  having  notes  in  his 
possession  as  collateral  security 
for  a  debt  is  bound,  so  far  as  the 
general  owner  of  the  notes  is  con- 
cerned, to  use  reasonable  dili- 
gence to  protect  the  security  so 
held  and  see  that  it  is  not  out- 
lawed. And  where  a  debtor 
pledged  notes  of  solvent  persons 
which  could  with  reasonable  dili- 
gence on  the  part  of  the  pledgee 
have  been  collected  at  maturity, 
but  thereafter  while  in  the  hands 
of  the  pledgee  the  notes  became 
uncollectible  because  of  the  in- 
solvency of  the  maker,  held,  that 
in  the  absence  of  a  showing  of 
diligence  the  pledgor  could  re- 
cover of  the  pledgee  the  amount 
of  the  uncollectible  collateral. 
And  if  in  an  action  on  a  note  the 
holder  fails  to  produce  or  account 
for  collateral   pledged  for  its  se- 


260  PLEDGE  OR  PAWN.  [§   277a. 

§  277.  The  pledgor  may  under  certain  circumstances  pro- 
tect the  pledged  property  from  injury. — While  the  law  pro- 
tects the  pledgee  in  the  possession  of  the  pledged  property, 
even  as  against  the  pledgor  during  the  continuance  of  the  pledge, 
giving  to  him  the  right  to  recover  it  if  it  is  taken  from  him,  it 
places  certain  duties  upon  the  pledgee,  making  it  incumbent 
upon  him  to  protect  the  interests  of  the  pledgor  in  the  property, 
to  the  extent,  at  least,  that  the  property  shall  not  in  any  wise 
suffer  damage  while  in  his  possession. 

This  right  to  protect  the  property  does  not  deprive  the  pledgor 
of  the  privilege  of  protecting  his  own  interests  in  case  of  failure 
on  the  part  of  the  pledgee  to  do  so,  and  whenever  it  becomes 
necessary  in  order  to  protect  himself  from  loss  he  may  at  once 
proceed  without  reference  to  the  possession  of  the  pledgee.  As, 
for  example,  where  negotiable  paper  has  been  pledged  as  collat- 
eral security,  it  is  the  duty  of  the  pledgee  to  make  collection  of 
such  paper  when  it  falls  due;  should  he  fail,  however,  to  do  so 
to  the  prejudice  of  the  rights  of  the  pledgor,  the  pledgor  may 
proceed  to  the  collection  of  the  amount  due ;  or,  should  it  appear 
that  the  paper  was  about  to  be  outlawed,  he  could  bring  an  ac- 
tion against  the  maker  before  the  expiration  of  the  statutes  of 
limitation  and  thus  protect  his  interests.  Indeed,  it  is  his  right 
to  protect  his  own  interests  upon  failure  of  the  pledgee  to  do 
what  is  necessary  to  be  done.* 

§  277a.  Pledgor  may  transfer  the  title  to  the  property. — In 
WJiitaker  v.  Sumner^  the  court  say:  "It  seems  now  well  set- 
tled that  when  personal  property  is  under  a  pledge  or  lien, 
whether  created  by  operation  of  law  or  by  the  act  of  the  owner, 

curity,  the  note  may  be  credited  constituted  a  ground  of  counter- 

with  the  amount  of  the  collateral.  claim  on  an  action  to  recover  the 

Mansur-Tebbetts  Implement  Co.  v.  debt. 

Carey  et  al.,  45  S.  W.  120.  In  4  O'Kelley  v.  Ferguson,  49  La. 
Anderson  et  al.  v.  Carothers  et  Ann.  1230.  "The  fact  that  a  party 
al.,  18  Wash.  520,  a  creditor  ac-  has  transferred  certain  notes  held 
cepted  a  transfer  of  sheep  as  col-  by  him  to  another  person  as  col- 
lateral security,  agreeing  to  sell  lateral  does  not  withdraw  en- 
them  and  retain  out  of  the  pro-  tirely  from  him  the  power  of  pro- 
ceeds the  amount  of  his  claim.  tecting  his  interests  by  proceed- 
The  court  held,  in  an  action  ing  against  the  maker  of  the 
brought  by  a  creditor,  that  care-  notes." 

lessness  of  the  pledgee  in  keep-  s  20    Pick.    (Mass.)    399 ;     Tux- 

ing,  and  failing  to  sell  the  sheep  worth  v.  Moore,  9  Pick.  347;  Fet- 

until  after  the  market  had  fallen,  typlace   v.    Dutch,    13    Pick.    388; 

and  not  properly  caring  for  them,  Bush  v.  Lyon,  9  Cowen  (N.  Y.),  52. 


§  277.]  pledgor's  rights  and  liabilities.  261 

the  general  property  remains  in  the  owner,  and  he  may  trans- 
fer it  by  a  proper  contract  and  upon  a  good  consideration, 
subject  only  to  the  lien.  And  in  such  case,  as  the  actual  cus- 
tody and  possession  of  the  goods  for  the  time  being  is  in  the 
hands  of  the  party  having  the  lien,  it  follows  that  a  constructive 
or  symbolical  delivery  is  sufficient  to  pass  the  property.  An 
order  by  the  vendor  upon  the  keeper,  or,  if  the  contract  of  sale 
or  conveyance  be  in  writing,  proper  and  satisfactory  notice  of 
.the  conveyance  by  the  vendee  to  the  holder,  constitutes  such 
constructive  delivery.  Where  goods  are  lying  in  a  warehouse, 
although  subject  to  a  lien  for  keeping,  notice  to  the  warehouse- 
keeper,  where  all  the  other  requisites  of  a  sale  are  proved,  is 
equivalent  to  a  delivery.  After  such  notice  the  keeper  ceases 
to  be  the  agent  of  the  vendor  and  becomes  the  agent  of  the 
vendee,  and  thus  the  goods  are  placed  under  as  effective  con- 
trol of  the  vendee,  as  they  would  be  by  an  actual  delivery." 
The  buyer  in  such  case  takes  all  the  rights  of  the  pledgor,  and 
may,  because  of  his  ownership  of  the  property,  recover  the  pos- 
session of  it  in  the  same  manner  that  the  pledgor  could  have 
recovered  it  had  he  remained  the  owner.  He  may  tender  payment 
of  the  amount  due  to  the  pledgee  and  demand  the  return  to 
himself  of  the  subject  of  the  pledge,  if  this  would  not  be  a  viola- 
tion of  the  pledge  contract,  and,  if  the  possession  is  refused,  may 
sustain  an  action  of  replevin  or  trover.  The  rule  is  that  the 
buyer  may  take  upon  himself  all  the  obligations  resting  upon 
the  pledgor,  even  to  becoming  personally  liable  for  the  per- 
formance of  the  contract.®  The  assignee  or  purchaser  should, 
however,  give  the  pledgee  notice  that  he  has  purchased  the  prop- 
erty  and   is   the    owner   of   it;    this   would    be    necessary    for 

6  Dupre  V.  Fall,  10  Cal.  430.    "F.  then  in  the  possession  of  F.,  to  D., 

and  H.  made  and  delivered  to  S.  the  plaintiff;   D.  subsequently  de- 

a    joint    and    several    promissory  manded  of  F.  the  $4,500  note,  of- 

note  for  $4,500;    afterwards,   and  fering  to  credit  the  same  with  the 

before  the  maturity  of  this  note,  amount  of  the  $1,000  note  and  in- 

S.  gave  his  note  for  $1,000,  with  terest;   F.  declined  to  deliver  the 

large  interest,  to  C,  and  indorsed  note,   and  D.   brought  suit  to  re- 

and  delivered,  as  collateral  secur-  cover  the  amount  of  F.   and  H., 

ity,    the   note    of   F.   and    H.   for  less  the  $1,000  note  and  interest. 

$4,500.     C.  subsequently  assigned  Held,  that  the  suit  was  properly 

S.'s  note  of  $1,000  to  F.  and  de-  brought,  and  that  D.  is  entitled  to 

livered  the  note  of  F.  and  H.  as  recover   on    the    note    against    F. 

collateral  security,  or  as  he  held  and   H.,    less   the   amount   of   the 

it.  After  this  S.  sold  and  assigned  $1,000  note  and  interest." 
the   note   of   F.    and   H.    ($4,500) 


262  PLEDGE   OR  PAWN.  [§    278. 

his  own  protection,  for  without  notice  that  the  pledgor  had 
assigned  or  sold  the  property,  the  pledgee  might  make  payment 
or  even  return  the  property  to  him  and  be  protected  from 
any  action  brought  by  the  assignee;  but  with  such  notice 
to  the  pledgee  of  the  assignment  or  sale  of  the  property,  it 
would  be  held  subject  to  the  ownership  of  the  assignee  or  vendee ; 
and  if  the  pledged  property  should  be  sold  on  account  of  the 
default  of  the  pledgor  or  his  assignee  to  perform  the  pledged 
contract  or  obligation,  the  assignee  or  buyer  of  the  property 
would  be  entitled  to  any  surplus  over  and  above  the  amount 
necessary  to  discharge  the  obligation  for  which  the  property 
was  pledged." 

§  278.  Pledgor's  interest  subject  to  judicial  process. — At 
common  law  the  interest  of  the  pledgor  was  not  subject  to 
process  for  claims  against  him,  or  to  writ  of  execution.^  The 
right  of  the  pledgee  to  the  possession  of  the  property  was  re- 
spected. Statutes  in  many  of  the  states  have  made  changes  in 
this  respect  and  provided  procedure  by  which  the  interest  of  the 
pledgor  may  be  subjected  to  judicial  process  for  the  collection 
of  judgments  against  him.'' 

In  the  case  of  Pomeroy  v.  Smith,^'^  the  plaintiff  proved  that 
the  property  in  question  had  been  pledged  and  delivered  to  him 
by  the  owner  as  collateral  security  for  the  payment  of  a  debt, 
and  to  indemnify  him  against  certain  liabilities  which  he  had 
incurred  for  the  pledgor.  After  the  goods  were  delivered  they 
were  seized  upon  a  writ  of  attachment  as  the  property  of  the 
pledgor.  The  contention  upon  the  part  of  the  defendant  was 
that,  if  the  plaintiff  was  entitled  to  a  verdict,  he  should  only 
be  allowed  to  recover  such  a  sum  as  would  discharge  the  debt 
due  to  him  from  the  pledgor,  and  be  sufficient  to  indemnify  him 

■  In  Van  Blarcom  v.  Broadway  to  cancel,   pay  up   and   discharge 

Bank,  37  N.  Y.  540,  the  court  say:  the  claim  of  the  defendant,  by  the 

"The  accountability  of  the  defend-  pledge  of  the  stock,  and  not  be- 

ant   was    in   no   respect   changed  yond  that  sum." 

thereby,    and    the    defendant   had  »  Wilkes  et  al.  v.  Ferris,  5  Johns, 

only  a  right  to  claim,  as  a  charge  336. 

against  the  proceeds  arising  upon  a  California,     Georgia,     Indiana, 

the     sale     of     the     stocks,     such  Maine,    Massachusetts,    Michigan, 

amount  as  would  have  been  nee-  Minnesota,  New  Hampshire,  New 

essary  for  the   plaintiffs   to  have  York,    Texas,    Vermont   and   Wis- 

tendered  on  the  day  of  the  assign-  cousin, 

ment,  with  interest  and  expenses,  lo  17  Pick.  85. 


§  279.]  pledgor's  rights  and  liabilities.  263 

against  the  liabilities  he  had  assumed.  But  the  court  below 
held  that  the  plaintiff  was  entitled  to  recover  damages  to  the 
full  value  of  the  goods  that  had  been  taken  from  him  upon 
the  writ,  and  judgment  was  had  in  accordance  with  his  holding. 
Chief  Justice  Shaw,  delivering  the  opinion  of  the  court,  held 
that  the  court  below  was  right  in  directing  that  the  value  of  the 
goods  should  be  the  rule  of  damages.  In  the  course  of  the 
opinion  the  court  said :  ' '  But  neither  by  the  common  law  nor  by 
force  of  statute  was  this  property  lawfully  attached.  By  the 
statute  two  modes  of  attaching  property  pledged  or  mortgaged 
are  prescribed:  one  by  the  summoning  of  the  pledgee  as  the 
trustee  of  the  debtor ;  the  other  by  first  tendering  the  amount  for 
which  the  goods  stand  subject. ' '  ^^ 

§  279.  When  the  debt  secured  is  barred  by  statute  of  limita- 
tions.— The  fact  that  the  debt  for  the  payment  of  which  the 
property  is  pledged  is  barred  by  the  statute  of  limitations  will 
not  release  the  property,  and  the  pledgor  cannot  on  this  ac- 
count compel  the  surrender  to  him  of  securities  or  property 
pledged  without  paying  the  indebtedness.  The  pledgee  may  not 
be  able,  because  of  the  statute  of  limitations,  to  sue  upon  the 

11  In  Treadwell  v.  Davis,  34  Cal.  cution  against  the  pawnor,  but 
601,  the  court  say:  "Whilst  the  subject  to  the  rights  and  inter- 
interest  of  the  pledgor  may  there-  ests  of  the  pawnee.  The  taking 
fore  be  reached  under  an  execu-  of  the  property  out  of  the  posses- 
tion,  it  can  only  be  done  by  serv-  sion  of  the  pawnee  by  a  sheriff's 
ing  a  garnishment  on  the  pledgee,  sale  does  not  divest  his  property 
and  not  by  a  seizure  of  the  pledge.  and  is  in  no  sense  a  relinquish- 
The  law  wisely  provides  that  the  ment  of  his  lien,  and  a  bona  fide 
pledgee  shall  not  be  disturbed  in  purchaser  from  a  sheriff's  vendee 
his  possession  unless  it  be  by  an  takes  it  subject  to  said  lien.  The 
order  of  the  court  made  after  ex-  sheriff,  sells  only  the  title  of  the 
amination,  'on  such  terms  as  may  defendant  in  an  execution,  and 
be  just,  having  reference  to  any  the  real  owner,  besides  trespass 
liens  thereon  or  claims  against  against  the  sheriff,  may  maintain 
the  same.'  In  this  method  the  replevin  or  trover  against  his 
rights  of  all  parties  may  be  pro-  vendee."  Baugh  v.  Kirkpatrick, 
tected;  and  it  is  the  only  method  54  Pa.  St.  84.  "An  execution  can- 
by  which  the  interest  of  the  not  take  goods  out  of  a  pawnee's 
pledgor  can  be  subjected  to  an  possession  without  tendering  him 
execution."  Reichenbach  v.  Mc-  the  money  for  which  he  holds 
Kee,  95  Pa.  St.  432.  "In  the  case  them  in  pledge."  Briggs  v. 
of  a  pawn  or  a  pledge  there  is  a  Walker,  21  N.  H.  72;  Mechanics' 
special  property  in  the  pawnee.  Bldg.  &  Loan  Ass'n  v.  Conover,  14 
It  is  liable  to  be  sold  on  an  exe-  N.  J.  Eq.  219. 


264  PLEDGE   OR   PAWN.  [§    280. 

indebtedness  and  obtain  a  judgment;  the  statute  may  be  a  com- 
plete defense  to  such  an  action;  but  he  can  hold  the  pledged 
property  for  its  payment,  and,  if  default  is  made,  may  foreclose 
the  pledge  and  sell  the  property  for  the  payment  of  the  in- 
debtedness. The  contract  of  pledge  may  be  enforced  and  the 
property  subjected  to  the  payment  of  the  debt  to  secure  which 
it  is  pledged;  even  though  the  debt  secured  is  outlawed  the  law 
will  require  a  fulfillment  of  the  pledge.^^ 

§  280.  When  will  the  statute  of  limitations  run  against  the 
pledgor. — The  statute  of  limitations  will  not  begin  to  run 
against  the  pledgor  until  he  has  made  a  tender  of  the  amount 
of  the  debt  for  which  the  property  is  pledged  and  the  pledgee 
has  refused  to  restore  the  property  held  by  him  as  security  for 
the  indebtedness;  until  this  is  done  no  action  could  accrue  in 
favor  of  the  pledgor  for  the  recovery  of  the  property,  and  there- 
fore the  statute  of  limitations  would  not  commence  to  run  until 
the  action  was  ripe.  "Mere  delay  on  the  part  of  the  pledgor 
to  claim  a  redemption  of  the  pledge  for  a  period  shorter  than 
the  time  prescribed  by  the  statute  of  limitations  as  a  bar  to  an 
action  on  the  debt  for  which  the  pledge  was  held  would  not 
suffice  to  raise  a  presumption  against  the  right  of  the  pledgor 
to  redeem. "  ^^     It  is  evident  that  the  pledgor  would  not  be  barred 

12  In  Tembler  v  Palestine  Ice  to  2  Am.  &  Eng.  Ann.  Cas.,  p.  271, 
Co.,  17  Tex.  App.  506,  43  S.  W.  are  collected  many  cases,  with 
896,  the  court  say:  "A  pledgee  of  comments  on  their  several  hold- 
stock  may  enforce  payment  of  his  ings,  among  them  Waterfield  v. 
debt  by  a  sale  of  it,  though  the  Rice,  49  C.  C.  A.  504,  111  Fed. 
debt  be  barred  by  statute  of  lim-  G25;  Hood  v.  Hammond,  128  Ala. 
itation."  In  re  Oakley  et  al.,  2  569;  German,  etc..  Bank  v.  Hanna, 
Edw.  Ch.  (N.  Y.)  278;  Gage  v.  124  Iowa,  379;  Bonbright  v.  Bon- 
Riverside  Trust  Co,  86  Fed.  984.  bright,  123  Iowa,  305;  Wright  v. 
"A  pledgor  cannot  compel  the  Ross,  36  Cal.  414;  Hancock  v. 
surrender  to  him  of  securities  Franklin  Ins.  Co.,  14  Mass.  155; 
pledged  without  paying  the  in-  Commercial  Sav.  Bank  v.  Hom- 
debtedness,  on  the  ground  that  berger,  140  Cal.  16. 
the  statute  of  limitations  has  run  i3  Whelen's  Ex'r  v.  Kingsley's 
against  it;  and  further,  he  will  be  Adm'r,  26  Ohio  St.  131.  "What- 
estopped  from  setting  up  the  stat-  ever  the  rule  may  be  in  cases 
ute  where  in  his  complaint,  in  an  where  the  pledgor  makes  no 
action  between  the  parties,  he  has  claim  for  redemption  until  after 
admitted  and  alleged  the  indebt-  the  right  of  the  pledgee  to  re- 
edness"  Conway  et  al.  v.  Cas-  cover  his  debt  is  barred  by  the 
well  et  al.,  121  Ga.  254,  2  Am.  &  statute  of  limitations,  we  are 
Eng.  Ann.  Cas.  269.    In  the  notes  quite    satisfied    that    mere    delay 


§  281.]  pledgor's  rights  and  ll^bilities.  265 

by  the  statute  until  the  full  term  had  run  after  his  right  of 
^action  had  accrued. 

Judge  Story  in  his  work  on  Bailments  ^^^  says :  "  If  the  pawnee 
•does  not  choose  to  exercise  his  acknowledged  right  to  sell,  he 
still  retains  the  property  as  a  pledge,  and  upon  a  tender  of  the 
debt  he  may  at  any  time  be  compelled  to  restore  it;  for  pre- 
scription of  the  statute  of  limitations  does  not  run  against  it." 
And  he  further  adds:  "After  a  long  lapse  of  time,  if  no  claim 
for  a  redemption  is  made,  the  right  will  be  deemed  to  be  ex- 
tinguished and  the  property  will  be  held  to  belong  absolutely 
to  the  pawnee."  It  is,  however,  difficult  to  conceive  of  a  case 
where  the  pledgor  would  by  delay  forfeit  his  right  to  redeem. 
That  right  is  a  vested  property  right,  and  is  as  absolute  as  is 
the  equity  of  redemption  in  a  mortgagor. 

§  281.  The  pledgor's  right  to  redeem. — This  is  a  right  of 
which  the  pledgor  cannot  be  deprived,  even  if  the  contract  or 
agreement  creating  the  pledge  contains  a  covenant  upon  the 
;part  of  the  pledgor  that  the  property  shall  become  irredeemable 
tipon  failure  to  pay  or  perform  the  obligation  for  which  the 
property  is  pledged.  Public  policy  demands  that  the  pledgor 
shall  at  all  times  prior  to  the  sale  of  the  pledged  property  upon 
foreclosure  have  a  right  to  redeem  it,  and  a  contract  of  pledge 
containing  an  agreement  or  provision  depriving  the  pledgor  of 
the  right  to  redeem  is  held  to  be  void  in  that  respect.^*  If  after 
the  pledge  has  been  executed  and  the  property  delivered  the 

for  a  shorter  period  of  time  will  cock    v.    Franklin    Ins.    Co.,    114 

not  suflBce  to  raise  a  presumption  Mass.  155. 

against  his  right  to  redeem.  Until  i*  In  Vickers   v.   Battershall  et 

such  bar  against  the  debt  is  fixed  al.,  32  N.  Y.  Supp.  314,  the  court 

it    must    be    presumed    that    the  held  that  "where  a  note  was  as- 

credit    and    the    pledge    are    con-  signed  as  collateral  security  the 

tinued  by  mutual  consent."  debtor   may   redeem   on   payment 

13a  Story  on  Bailments,  sec.  346;  of  the  debt  though  the  assignment 

Cross  V.  Eureka  Lake,  etc.  Canal  contained    a    provision    that,    in 

Co.,   73   Cal.   302.     "A  pledgee  of  case  the  debt  should  not  be  paid 

shares  of  the  capital  stock  of  a  at  maturity,   the  note  should  be- 

corporation  has  a  right  to  retain  long  to  the  assignee.     An  equity 

their  possession  until  the  debt  to  of    redemption    attached    to    the 

secure  which  they  were  pledged  note  in  the  plaintiff's  hands,  and 

is  satisfied;  and  while  so  holding  nothing  could  destroy  that  equity 

he  cannot  claim   them  adversely  except  a  judgment  of  foreclosure 

and  thereby  acquire  a  title  under  rendered  by  a  court  of  competent 

the  statute  of  limitations."     Han-  jurisdiction.    Forfeitures  are  abol- 


266  PLEDGE   OR  PAWN.  [§    282.. 

parties  should  desire  to  cut  off  the  right  to  redeem,  that  is,  to  fix 
a  time  or  a  condition  upon  which  the  title  to  the  property 
should  become  vested  in  the  pledgee,  they  may  do  so;  and  such  a 
contract  or  agreement  would  not  be  considered  void,  for  the 
reason  that  the  pledgor  would  have  a  perfect  right  to  make  such 
a  conditional  sale  of  his  equity  of  redemption.  Unless,  how- 
ever, such  a  subsequent  contract  has  been  made  disposing  of  his 
right  to  redeem,  the  pledgor  may  before  the  property  is  sold 
upon  foreclosure  of  the  pledge  redeem  by  payment  of  the  debt 
or  performance  of  the  obligation;  and  if  in  the  contract  pledg- 
ing the  property  no  particular  time  is  fixed  for  redemption,  he 
may  redeem  at  any  time;  if  the  contract,  however,  fixes  a  time 
for  redeeming  by  the  pledgor,  he  could  not  redeem  at  any  time 
before  the  expiration  of  the  time  fixed ;  but  the  right  to  redeem 
at  any  time  after  the  time  fixed,  and  before  the  foreclosure  sale, 
would  not  be  cut  off  by  such  a  contract. 

§  282.  As  to  notice  of  intention  to  redeem. — There  are  cases 
where  the  courts  have  held  that  the  pledgee  was  entitled  to  a 
reasonable  notice  of  the  pledgor's  intention  to  redeem  in  order 
that  he  might  produce  the  bailed  property  and  become  assured 
that  the  indebtedness  had  been  canceled,  or  that  the  pledgor 
had  not  waived  his  right  to  redeem.  These  courts  seem  to  pro- 
ceed upon  the  theory  that  it  is  no  more  than  just  in  certain 
cases  that  the  pledgee  should  have  a  reasonable  time  to  deliver 
up  the  pledged  property  after  the  intention  of  the  pledgor  is 
made  manifest.  The  supreme  court  of  Georgia,  in  McCalla  v. 
Clark,  ^^  entertains  this  theory,  holding  to  the  generally  accepted 
doctrine  that  "tender  of  the  debt  on  the  day  it  becomes  due  ter- 
minates the  creditor's  right  to  retain  possession  of  a  pledge  held 

ished  under  our  law,  and  the  rule  bodied  in  the  mortgage.  Lucketts 
is  firmly  established  that  under  v.  Townsend,  49  Am.  Dec.  723; 
every  instrument  given  as  secu-  Tredwell  v.  Clark,  77  N.  Y.  S.  350. 
rity,  the  borrower  has  a  right  to  is  55  Ga.  53;  Dewart  v.  Masser, 
redeem  upon  payment  of  the  40  Pa.  St.  303.  "A  bailee  who 
loan."  Clark  v.  Henry,  2  Cow.  has  received  property  to  hold  as 
324.  In  Peugh  v.  Davis,  96  U.  S.  security  for  the  payment  of  a 
332,  the  circuit  court  of  the  debt  is  under  no  obligation  to  re- 
United  States  stated  the  rule  to  turn  it  until  demand  made,  or 
be  that  the  right  to  redeem  can-  at  least  until  he  has  notice  that 
not  be  waived  or  abandoned  by  the  debt  as  security  for  which  he 
any  stipulation  of  the  parties  holds  the  pledge  has  been  dls- 
made   at   any   time,   even   if   em-  charged." 


§  283.]  pledgor's  rights  and  liabilities  267 

as  collateral  security ;  and  it  is  an  immediate  conversion  for  Mm 
to  refuse  the  tender  and  retain  the  pledge  on  a  claim  of  title 
based  upon  an  alleged  forfeiture  for  delay  to  make  payment;" 
and  further  holding  that  "if  the  debtor  be  himself  in  default 
by  reason  of  having  delayed  payment  beyond  maturity  of  the 
debt,  a  like  refusal  and  claim  by  the  creditor  will  not  amount  to 
a  conversion,  if,  on  the  same  day  of  the  tender,  before  suit  is 
brought,  and  before  the  situation  of  the  parties  is  materially 
changed,  he  retract  his  refusal,  after  taking  the  advice  of  counsel 
and  then  offer  to  accept  the  tender  and  restore  the  pledge,  pro- 
vided the  tender  be  enlarged  so  as  to  cover  charges  on  the  pledge 
which  the  pledgee  has  lawfully  paid  prior  to  the  tender. ' '  And 
in  Dewart  v.  Masser  ^^  the  court  held  that  where  the  pledgee  had 
become  surety  upon  notes  for  the  pledgor,  and  the  pledgor  had 
redeemed  by  paying  the  notes  or  discharging  the  indebtedness, 
that  in  such  case  the  pledgee  was  entitled  to  notice  of  such  pay- 
ment or  discharge  of  the  notes  and  reasonable  time  to  become 
assured  of  the  fact  of  the  payment.  So  it  would  seem  that  in 
these  two  classes  of  cases  the  pledgee  would  be  entitled  to  reason- 
able notice,  to  wit,  where  a  long  time  has  expired  after  the  paper 
becomes  due  for  which  the  property  was  pledged,  and  the  pledgor 
has  been  in  default;  and  second,  in  cases  where  the  pledgee  has 
become  surety  and  held  the  property  to  secure  him,  he  would 
be  entitled  to  notice  that  the  note  or  the  paper  upon  which  he 
has  become  surety  has  been  discharged  and  a  reasonable  time  to 
determine  for  himself  that  fact. 

§  283.  The  pledgor  impliedly  warrants  the  title  of  the 
pledged  property. — The  rule  that  the  pledgor  impliedly  war- 
rants that  he  is  the  owner  of  the  pledged  property,  or  has  such 
an  interest  or  ownership  as  legally  entitles  him  to  pledge  it  as 
security  for  the  payment  of  the  debt  or  performance  of  the  ob- 
ligation, is  analogous  to  the  rule  that  obtains  in  the  law  of  sales, 
which  holds  that  the  vendor  impliedly  warrants  that  he  is  the 
owner  of  the  property  sold;  and  following  the  analogy  in  this 
case,  the  bailor  is  liable  in  damages  where  the  ownership  or  any 
part  of  it  is  not  in  him,  and  by  reason  of  the  defective  title  the 
pledgee  is  deprived  of  the  property  pledged.^' 

If  the  pledgor  undertakes  to  pledge  the  property  of  another 
without  his  consent,  he  would  be  estopped  from  denying  at  any 

16  40  Pa.  St.  302.  it  Mairs    v.    Taylor    40    Pa.    St.  446. 


268  PLEDGE  OR   PAWN.  [§    285. 

time  that  he  was  not  the  owner  of  the  property,  and  would  not 
be  allowed  to  invalidate  the  pledge  or  deprive  the  pledgee  of  the 
property;  and  although  he  was  not  the  owner  of  the  property 
at  the  time  the  pledge  was  consummated,  but  afterwards  ob- 
tained the  title,  his  ownership  of  the  property  would  relate  back 
to  the  time  of  the  making  of  the  pledge,  and  would  inure  to  the 
benefit  of  the  pledgee.  In  this  the  rule  accords  with  that  which 
obtains  in  sales  and  transfers  of  personal  property,  and  in  cases 
of  conveyance  of  real  property  with  covenants  of  seizin  and 
warranty.  ^^ 

§  284.  Rights,  duties  and  liabilities  of  the  pledgee. — We  have 
already  considered  this  subdivision  in  many  of  its  features  in 
our  treatment  of  previous  subjects,  and  little  is  left  to  be  par- 
ticularly noticed  except  to  call  attention  to  some  certain  phases 
not  sufficiently  explained.  The  general  principles  governing 
this  class  of  bailments  suggest  the  course  of  discussion.  Posses- 
sion, care,  custody  and  return  of  the  property  is  the  natural 
course  of  the  pledgee 's  contract  if  it  is  fulfilled  and  the  indebted- 
ness or  obligation  discharged.  If  the  pledgor  fails  to  pay  or  dis- 
charge the  obligation,  then  a  foreclosure  of  the  pledge  and  all 
the  rights,  duties  and  obligations  incident  thereto ;  but  this  would 
belong  more  logically  to  another  subdivision,  namely,  the  rights 
and  duties  of  the  parties  after  the  default  of  the  pledgor. 

§  285.  The  possession. — As  we  have  already  seen,  possession 
of  the  pledged  property  must  necessarily  be  with  the  pledgee 
or  his  assignees;  it  is  a  requisite  of  the  pledge,  a  symbol  of  the 
security  guaranteed  by  the  pledged  property,  and  so  the  pledgee, 
as  long  as  he  remains  the  creditor  or  obligee  of  the  pledgor,  is 
•entitled  to  the  possession  of  the  property  pledged;  it  stands  as 
bis  security  for  the  indebtedness  or  obligation,  guaranteeing  pay- 
ment or  performance,  and  this  possession  becomes  a  vested  prop- 
erty interest  in  the  pledgee,  which  he  owns  as  much  as  he  owns 
his  horse  or  any  other  chattel,  nor  can  he  be  deprived  of  it  any 
more  easily.  Until  the  debt  or  obligation  is  discharged  the 
pledgee  may  hold  and  possess  the  pledged  property,  and  cannot 
be  deprived  of  it  except  by  his  own  voluntary  act,  or  by  due 
process  of  law.^^ 

18  Goldstein  v.  Hort,  30  Cal.  372.  holds    under    a    valid    pledge    as 
isYeatman  v.  Savings  Inst.,  95  security  for  his  debt  against  the 
U.  S.  7G4.    "Until  he  shall  be  paid,  pledgors,   notwithstanding  a  sub- 
the  pledgee  is  entitled  to  the  pos-  sequent     adjudication     of     bank- 
session  of  the  property  which  he  ruptcy  against  them;   and  his  re- 


§  286.]  pledgor's  rights  and  liabilities.  26& 

§  286. — The  pledge  an  incident  of  the  debt  secured,  and  as- 
signable.— A  pledge  to  secure  the  payment  of  a  debt,  or  the 
performance  of  an  obligation,  is  more  than  a  mere  bailment;  it 
becomes  a  part  of  the  transaction  or  contract  to  pay  or  perform 
the  obligation ;  it  is  an  incident  to  the  debt  itself  and  cannot  be 
separated  from  it;  therefore  it  is  held  that  to  make  an  effectual 
sale,  both  the  pledge  and  the  debt  must  pass  to  the  assignee.^" 
Possession,  as  has  been  said,  is  a  requisite  to  a  valid  pledge,  and 
to  lose  the  possession  might  result  in  the  loss  of  the  security; 
for  in  such  case  the  pledged  property  might  become  liable  to 
levy  and  sale  upon  execution  for  the  debts  of  the  pledgor,  or,  if 
sold  to  a  bona  fide  purchaser,  become  lost  as  security  for  the 
debt.  While  this  is  true,  the  security  will  be  protected  if  the  pos- 
session and  indebtedness  are  held  by  the  same  person.  So,  the 
pledgee  may  assign  the  debt  or  obligation  and  with  it  the  se- 
curity, and  the  assignee  would  acquire  all  the  rights  and  privi- 
leges of  the  pledgee;  would  be  entitled  to  the  possession  of  the 
pledged  property,  and  be  fully  protected  in  that  right  even  as 
against  the  pledgor  or  his  assignor.  In  Falkner  v.  Hill  ^^  it  was 
held  that  a  pledgee  might  release  a  portion  of  the  goods  to  the 
pledgor;  or,  with  his  consent,  to  his  assignee,  and  not  affect  the 
lien  of  the  pledgee  upon  the  remainder  of  the  property,  or  his 
right  of  action  against  the  debtor  upon  the  personal  obligation. 

fusal  to  surrender  it  to  their  as-  of  the  amount  due  on  the  princi- 
signees  is  not  a  conversion  of  it.  pal  debt  the  pledgor  is  not  in- 
The  failure  of  the  pledgee  to  ap-  jured."  Jarvis  v.  Rogers,  15 
pear  and  prove  his  claim  in  the  Mass.  389;  Whitaker  v.  Summer, 
bankruptcy  court  forfeits  only  his  20  Pick.  (Mass.)  399;  Goss  v.  Em- 
right  to  participate  in  the  dis-  erson,  23  N.  H.  38;  Bailey  v. 
tribution  of  the  bankrupt's  estate  Colby  34  N.  H.  29;  Belden  v.  Per- 
ordered  by  that  court."  kins,  78  111.  449;  Bradley  v.  Parks, 
20  Whitney  v.  Peay,  24  Ark.  22;  83  111.  169.  As  to  negotiable  in- 
Johnston  v.  Smith,  11  Humph.  struments:  Duncomb  v.  N.  Y.  etc. 
(Tenn.)  396;  BuUard  v.  Billings,  R.  Co.,  84  N.  Y.  190;  Lewis  v. 
2  Vt.  309;  Chapman  v.  Brooks  et  Mott,  36  N.  Y.  395;  White  Mts. 
al.,  31  N.  Y.  75.  "A  pledgee  may  etc.,  R.  Co.  v.  Bay  State  Iron  Co., 
assign  the  principal  debt  to  a  50  N.  H.  57;  Merchants'  Bank  v. 
third  person,  and  give  him  the  State  Bank,  10  Wall.  (U.  S.)  604. 
benefit  of  any  pledge  which  he  It  is  not  necessary  to  obtain  the 
holds  to  secure  the  payment  of  consent  of  the  pledgor.  Curtis  v. 
such  debt.  So  long  as  nothing  is  Leavitt,  15  N.  Y.  9. 
done  to  deprive  the  pledgor  of  21 104  Mass.  188. 
the  right  to  redeem  on  payment 


270  PLEDGE   OR  PAWN.  [§    287. 

§  287.  Assignment  of  secured  debt  passes  equitable  interest 
in  pledged  property. — The  assignee  of  the  debt  secured  by  the 
pledged  property  stands  somewhat  in  the  same  relation  as  the 
assignee  of  the  mortgage  indebtedness  to  the  mortgage  security; 
he  has  an  equitable  interest  in  the  pledge  and  the  pledged  prop- 
erty, which  under  certain  circumstances  may  be  enforced.  The 
pledgee's  interest  in  the  property  exists  only  because  of  the  in- 
debtedness; the  debt  and  the  special  property  in  the  security 
cannot  be  separated.  When  the  pledgee  ceases  to  own  the  debt 
the  special  property  and  all  the  property  he  has  in  the  pledge 
ceases,  and  he  has  no  legal  or  equitable  interest  in  it.  If,  with 
the  assignment  of  the  debt,  the  pledgee  passes  the  pledged  prop- 
erty to  his  assignee,  then  the  assignee  has  a  legal  interest  in  it, 
and  his  relations  to  it  are  the  same  as  that  of  the  pledgee;  but 
if  the  pledgee  does  not  deliver  to  him  the  possession  of  the 
pledged  property,  the  assignee  has  an  equitable  interest  in  it  and 
may  enforce  it,  unless  it  be  negotiable  paper  which  has  been 
transferred  to  a  bona  fide  holder,  or  such  a  transfer  is  not  con- 
templated by  the  contract  of  pledge.  The  supreme  court  of 
Connecticut,  in  Homer  v.  Savings  Bank,  after  fully  discussing 
the  question,  and  the  American  and  English  cases  bearing  upon 
it,  say:  "The  principle  to  be  extracted  from  these  cases  is  this: 
That  when  collateral  security  is  given  or  property  assigned  for 
the  better  protection  or  payment  of  a  debt,  it  shall  be  made 
effectual  for  that  purpose,  and  that  not  only  to  the  immediate 
party  to  the  security,  but  to  others  who  are  entitled  to  the  debt ; 
and  to  make  them  thus  effectual  a  court  of  chancery  will  lend 
its  aid,  and  the  reason  is  that  such  is  the  intent  of  the  trans- 
action. ' '  ^^ 

The  courts  holding  to  this  doctrine  proceed  upon  the  theory 
that  the  pledgee  holds  the  property  pledged  simply  and  alone 
as  security  for  the  payment  of  the  debt,  and  that  it  is  the  in- 
tention of  the  original  parties  that  the  property  should  be  sub- 
jected to  the  payment  of  the  debt  if  the  pledgor  should  fail  to 
discharge  the  obligation.  That  while  the  legal  title  to  the  prop- 
erty remains  in  the  pledgor,  it  is  a  naked  title;  the  equitable 
and  beneficial  interest  being  to  the  extent  of  the  security  for  the 
debt  in  the  pledgee.  So  it  has  been  held  that  upon  assignment 
of  the  debt  the  security  being  created  for  the  payment  of  the 

22  7  Conn.  478 


§  289.]  pledgor's  rights  and  liabilities.  271 

debt  is  a  trust  existing  for  that  specific  purpose  which  equity 
will  en  force.  ^^ 

§  288.  Rights  of  assignee  subject  to  the  contract  of  pledge. 
The  original  contract  of  pledge  cannot  be  superseded  by  any 
subsequent  action  on  the  part  of  the  pledgee  without  the  con- 
sent of  the  pledgor.  If  it  was  clearly  the  intention  of  the  par- 
ties that  the  pledged  property  should  remain  in  the  hands  of  the 
pledgee  and  should  not  be  assigned  to  another,  that  contract 
would  be  respected  and  enforced,  and  in  such  case  the  pledged 
property  would  be  held  by  the  pledgee.  Such  intention  may  be 
gathered  from  the  language  of  the  contract,  or  may  be  implied. 
Ordinarily  there  is  no  such  implication  in  law,  but  it  has  been 
suggested  that  such  an  implication  would  arise  from  the  nature 
of  the  thing  pledged,  as  in  the  case  of  a  valuable  work  of  art 
which  it  is  to  be  supposed  the  pledgor  would  not  desire  to  give 
over  into  the  care  of  strangers.^*  It  may,  however,  be  further 
observed  that  if  the  contract  of  pledge  does  not  provide  that 
the  pledged  property  shall  be  turned  back  to  the  pledgor  in  case 
of  the  assignment  of  the  debt,  or  in  some  other  way  clearly  show 
that  it  is  the  intention  of  the  parties,  in  case  of  such  an  assign- 
ment, to  release  the  property  from  the  lien  of  the  pledge,  that  it 
could  be  held  in  the  hands  of  the  pledgee  still  subject  to  the 
pledge,  and  in  case  of  default  be  subjected  to  the  discharge  of 
the  secured  debt. 

§  289.  May  repledge. — As  we  have  seen,  the  pledgee  has  a 
property  in  the  pledge  to  the  extent  of  his  security;  it  there- 
fore follows  that  to  the  extent  of  this  property  interest  he  may 
repledge  it  to  secure  his  own  obligation,  but  he  cannot  pledge 

23  Stearns    v.    Bates    46    Conn.  he  also  owned   the  debt  secured 

306;    Estey   &   Green  v.   Graham,  by  the  pledge.     In  Ponce  v.   Mc- 

46  N.  H.  169;    Jones  on  Pledges,  Elvey,    47    Cal.    154,    it    was    held 

sec.  419.    In  Van  Eman  v.  Stanch-  that  the  assignee  of  the  principal 

field,  13  Minn.  75,  it  was  held  that  debt  and  collateral  security  holds 

the   pledgee   cannot   separate   his  the   latter   upon  the   same   terms 

special    property    in    the    pledge  that  the  original  pledgee  held  it. 

from   the    debt   secured   by   it   so  Alexander,   etc.   R.   Co.  v.   Burke, 

that  the  debt  shall  be  owned  by  22  Grat.  (Va.)  254. 
one  person  and  the  pledge  by  an-  24  The  suggestion  of  the  text  is 

other.    It  was  therefore  held  that  borne  out  in  the  opinion  by  Cock- 

the  assignee  of  the  pledge  could  burn,  J.,  in  Donald  v.  Suckling,  L. 

not  maintain  an  action  or  enforce  R.  1  Q.  B.  585. 
a  lien  unless  he  could  show  that 


272  PLEDGE  OE  PAWN.  [§    290. 

beyond  the  interest  which  he  has.  This  repledging  of  the  prop- 
erty, however,  must  always  be  subject  to  all  the  restrictions  of 
the  original  pledge,  and  to  disregard  these  restrictions  and  the 
original  pledged  contract,  or  to  repledge  the  property  claiming 
to  be  the  owner  thereof,  would  be  a  fraud  upon  the  original 
pledgor  as  well  as  upon  his  pledgee,  and  might  be  held  to  be  a 
conversion. ^^ 

§  290.  Right  to  use  the  pledged  property. — The  general  rule 
is  that  the  pledgee  has  no  right  to  use  the  pledged  property  ex- 
cept by  permission  of  the  pledgor,  or  by  the  agreement  which 
creates  the  pledge.^^  Exceptions  to  this  general  rule,  however, 
are  numerous,  principally  growing  out  of  the  obligation  of  the 
pledgee  to  exercise  reasonable  care  and  prudence  in  caring  for 
the  property;  for  there  are  many  kinds  of  property  the  subject 
of  the  pledge  that  ordinary  care  would  require  to  be  used.  Ex- 
amples of  this  kind  have  already  been  given,  both  where  prop- 
erty is  corporeal  and  incorporeal.^^  The  use,  however,  must  be 
a  proper  use,  and  consistent  with  the  ordinary  care  required, 
having  in  contemplation  the  object  of  the  pledge  and  the  prop- 
erty pledged.  As,  for  example,  a  carriage  horse  would  require 
exercise  in  order  to  give  him  proper  care,  and  the  pledgee  would 

25  In  Jarvis  v.  Rogers,  15  Mass.  This  doctrine  is  affirmed  in  Bel- 
389,  the  court  say:  "From  these  den  v.  Perkins,  78  111.  449. 
cases  it  appears  that  the  pawnee  26  sterns  v.  Marsh,  4  Den.  227; 
may  deliver  the  goods  to  a  stran-  McArthur  v.  Howett,  72  111.  358; 
ger  without  consideration,  or  he  Story  on  Bailments,  sees.  99-329. 
may  sell  and  assign  all  his  inter-  Where  property  is  pledged  the 
est  absolutely,  or  assign  it  condi-  pledgee  may,  with  the  assent  of 
tionally  by  way  of  pawn,  without  the  pledgor,  use  it  in  any  way 
in  either  case  destroying  the  orig-  consistent  with  the  general  own- 
inal  lien,  or  giving  the  owner  a  ership  and  the  ultimate  rights  of 
right  to  reclaim  them  on  any  the  pledgor.  Lawrence  v.  Max- 
other  or  better  terms  than  he  well,  53  N.  Y.  19.  But  should  any 
could  have  done  before  such  de-  damage  arise  by  reason  of  such 
livery  or  assignment."  In  Story  use  the  pledgee  would  be  answer- 
on  Bailments,  sec.  327,  it  is  said:  able.  As  touching  the  liability  of 
"But  whatever  doubt  may  be  in-  the  assignee  of  the  pledgee  of 
dulged  in  as  to  the  case  of  a  mere  stock,  see  Maxwell  v.  National 
factor,  it  has  been  decided  that  Bank,  70  S.  C.  532,  3  Am.  &  Eng. 
in  case  of  a  strict  pledge,  if  the  Ann.  Cas.  723,  and  notes, 
pledgee  transfers  the  same  to  his  27  Thompson  v.  Patrick,  4  Watts 
own  creditor,  the  latter  may  hold  (Pa.),  414;  Story  on  Bailments, 
the  pledge  until  the  debt  of  the  sec.  329;  Lawrence  v.  Maxwell,  53 
original     owner    is     discharged."  N.  Y.  19. 


§  291.]  pledgor's  rights  and  liabilities.  273 

be  entirely  excusable  for  driving  the  animal  to  a  carriage  for 
this  purpose ;  but  to  put  him  into  a  plow  team  would  be  an  illegal 
use  of  the  pledged  property  for  which  the  pledgee  might  be  sub- 
jected to  damage.  And  where  coupon  bonds  are  pledged  it  is 
the  duty  of  the  pledgee  to  cut  the  coupon  at  the  proper  time  and 
collect  the  interest  or  dividends  and  account  for  the  proceeds; 
if  a  mortgage  or  note,  to  collect  the  interest  or  the  principal  when 
due;  if  stocks,  to  protect  them,  and  even,  if  necessary  to  their 
protection,  to  vote  them  at  the  meeting  of  the  stockholders. 
But  ordinarily  the  pledgee  could  not  vote  the  stock  as  the  owner 
of  it,  and  if  he  does  so  vote  without  any  legal  consent  for  so 
doing,  the  act  might  be  deemed  to  be  an  act  of  conversion  of 
the  pledge  and  the  pledgor  could  restrain  the  pledgee  from  so 
doing.-^ 

§  291.  Expenses  and  profits. — The  right  of  the  pledgee  to 
make  expenditures  and  to  collect  profits  upon  the  pledged  prop- 
erty is  based  upon  the  rule  governing  the  rights  and  liabilities 
of  the  bailee,  and  is  occasioned  by  reason  of  the  bailment  being  a 
mutual  benefit  bailment  requiring  ordinary  diligence,  which  is 
that  degree  of  care  that  an  ordinarily  prudent  man  would  usu- 
ally bestow  upon  property  of  a  Like  nature  under  just  such  cir- 
cumstances. Unusual  expenses  or  improvements  would  not  be  al- 
lowed, but  it  is  incumbent  upon  the  bailee  to  do  whatever  is 
necessary  in  order  to  keep  the  property  in  such  a  condition 
that  it  will  be  reasonably  available  for  the  purposes  of  the 
pledge,  being  at  all  times  limited  to  expenses  which  are  usual 
and  necessary.  The  pledgee,  while  bound  to  make  useful  and 
necessary  repairs,  however,  cannot  make  new,  expensive  and 
unusual  improvements,  or  such  as  materially  change  the  bailed 
property  or  the  use  of  it.  If  he  does  no  more  than  to  incur 
usual  and  ordinary  expenses,  however,  he  can  recover  his  out- 
lay to  the  extent  of  the  increased  value.^®     In  Fagan  v.  TJiomp- 

28McDanieIs  v.  Flour  Mfg.  Co.,  the    pledge."      Heath    v.     Silver- 

22  Vt.  274;    Schouler's  Bailments  thorn     Co.,     39    Wis.     147.       The 

and     Carriers,     sec.     216.       "The  pledgee   of  stock  certificates  has 

pledgee  of  the   stock   has   appar-  the  right  to  collect  the  dividends, 

ently  no  right  to  vote  upon  it  as  Maxwell  v.  National  Bank,  70  S. 

owner;  and  at  all  events  he  ought  C.   532,  3  Am.   &  Eng.  Ann.   Cas. 

not,    where,    under    the    mode    of  723,   and  notes,   page  725,   where 

acquiring  transfer,  he  has  escaped  a  number  of  cases  are  collected, 
the  liability  of  a  stockholder;  but  29  Hendricks     v,     Robinson,     2 

the  fact  that  the  pledgee  so  votes  Johns.  Ch.  283. 
does  not  amount  to  conversion  of 

18 


274  PLEDGE  OR  PAWN.  [§    291. 

son  ^^  the  pledgee  of  a  steamer,  who  had  advanced  large  sums 
of  money  from  time  to  time  to  aid  in  running  it,  and  who  as- 
sumed and  paid  debts  and  expenses  that  had  accumulated  for 
repairs  and  insurance,  was  allowed  by  the  court  an  additional 
lien  upon  the  property  for  such  advancements  and  expenses. 
So  the  pledgee  of  an  insurance  policy,  who  was  compelled  to 
pay  premiums  upon  it  by  way  of  keeping  the  policy  alive,  was 
allowed  to  recover  the  amount  paid  in  addition  to  the  indebted- 
ness for  which  it  was  pledged.'^  In  Hill  v.  Smith  ^^  it  was  held 
"that  a  trustee  who  is  a  pledgee  of  personal  chattels  is  entitled 
to  a  fair  compensation  for  all  reasonable  expenses  attending  the 
keeping  of  them,  and  has  a  lien  therefor  upon  the  property 
pledged  as  against  the  pledgor  and  the  plaintiff.  Such  trustee, 
upon  the  sale  of  the  chattels  pledged  to  him  by  a  receiver  under 
the  direction  of  the  court,  is  entitled,  both  as  against  the  prin- 
cipal defendant  and  the  plaintiff,  to  so  much  of  the  avails  of 
such  sale  as  will  satisfy  not  only  the  original  debt  for  which 
the  chattels  were  pledged,  but  also  the  reasonable  expenses  in- 
curred in  the  keeping  of  the  same. ' '  The  rule  as  to  the  amount 
of  expenses  that  may  be  incurred  by  the  pledgee  and  recovered 
for  seems  to  be  that  the  expenses  must  be  reasonable  and  such 
as  would  be  incurred  along  the  line  of  the  pledgee's  duty,  and 
if  they  go  beyond  that  it  cannot  be  recovered;  and  his  duty 
may  be  said  to  be  to  keep  and  preserve  the  property,  protect 
the  title  and  make  the  security  available.  So  he  would  be  war- 
ranted in  paying  assessments  upon  stock  that  are  legally  made 
and  premiums  upon  insurance  policies  that  must  necessarily 
be  paid  in  order  to  keep  the  policy  in  force.  The  same  degree 
of  diligence  would  make  it  incumbent  upon  the  pledgee  to  col- 

80  38  Fed.  467.  title,  or  in  rendering  it  available, 

31  Rowan  V.  State  Bank,  45  Vt.  are  a  fair  charge  upon  the  prop- 
160.  erty,  and  the  balance  only  is  to 

32  28  N.  H.  3G9;  Starratt  v.  Bar-  be  applied  to  the  payment  of  what 
ber,  20  Me.  457.  "Where  prop-  is  due."  Ray  v.  Ross,  59  Ga.  62, 
erty  is  put  in  the  hands  of  the  where  a  pledgor  was  allowed  to 
payee  of  the  note  by  the  principal  recover  for  premiums  paid  by  him 
promisor  as  collateral  security  upon  an  insurance  policy  to  keep 
therefor,  it  is  received  by  him  it  alive.  Bank  of  Staten  Island 
under  an  implied  obligation  to  ac-  v.  Silvie,  85  N.  Y.  S.  760,  89  App. 
count  for  the  proceeds;  and  what-  Div.  465;  Mansur,  etc.  Co.  v. 
ever  expenses  are  necessarily  in-  Carey,  1  Ind.  T.  572,  45  S.  W.  120. 
curred   by   him   in   asserting  his 


§  292.]  pledgor's  rights  and  liabilities.  275 

lect,  care  for  and  account  for  all  profits  and  increase  arising 
from  the  pledged  property;  and  should  he  fail  to  exercise  or- 
dinary diligence  in  this  regard,  to  the  damage  of  the  pledgor, 
he  would  be  liable  for  whatever  damages  resulted  from  want 
of  such  care ;  for  the  pledgee  is  not  only  called  upon  to  exercise 
ordinary  diligence,  but  he  is  liable  to  the  pledgor  for  ordinary 
negligence. 

If  profits  accrue  in  the  hands  of  the  pledgee,  he  is  entitled  to 
hold  them,  and,  if  of  such  a  nature  that  they  can  be  so  applied, 
to  apply  the  same  toward  the  payment  of  the  debt;  or  in  case 
the  debt  or  obligation  is  discharged,  to  restore  such  profits  and 
all  increase,  together  with  the  pledged  property,  to  the  pledgor.^' 
It  may  also  be  said  that  it  is  the  duty  of  the  pledgee  to  make 
the  pledged  property  profitable  if  he  can  do  so;  and  where  ex- 
penses accrue  in  that  respect  he  would  be  entitled  to  deduct  them 
from  whatever  profits  were  realized,  being  under  obligation  at 
all  times  to  account  to  the  pledgor  for  whatever  transactions 
he  may  have  had  in  connection  with  the  pledged  property.  It 
may  be  said  that  the  rule  resolves  itself  into  this :  The  pledgor 
is  entitled  to  all  the  profits  of  the  bailment  and  is  liable  for 
all  the  necessary  expenses  while  in  the  hands  of  the  bailee.  If 
the  property  consists  of  stocks  or  valuabe  securities  paying 
dividends  and  profits,  the  pledgee  must  account  for  them;  if  of 
personal  property  yielding  profits  or  increase,  as  a  herd  of  milch 
cows,  a  flock  of  sheep,  or  such  like  property,  the  pledgee  must 
account  for  the  same  to  the  pledgor,  but  wiU  be  entitled  to 
all  expenses  necessarily  incurred  in  caring  for  the  pledge,  and 
in  some  cases  a  fair  compensation  as  pledgee  for  special  services, 
if  the  property  requires  it,  by  way  of  care  and  custody. 

§  292.  Liability  for  loss  and  damage. — The  pledgee  is  re- 
quired to  exercise  ordinary  diligence  and  is  liable  for  ordinary 

33  In  Hunsaker  v.  Sturgis  29  gagee  to  recover  money  subse- 
Cal.  142,  it  was  held:  "Where  the  quently  received  by  him  for  re- 
relation  of  pledgor  and  pledgee  turn  premiums  at  the  expiration 
exists,  if  the  debt  is  paid,  it  is  the  of  the  policies,  and  that  it  was 
duty  of  the  pledgee  to  account  immaterial  that  the  policies  had 
for  and  pay  over  all  the  income,  become  void  by  the  alienation  of 
profits  and  advantages  derived  the  insured  property  without  the 
from  the  bailment."  In  Merrifield  consent  of  the  company."  Andro- 
V.  Baker,  9  Allen,  29,  it  was  held  scoggin  R.  Co.  v.  Auburn  Bank, 
that  the  mortgagor  could  main-  48  Me.  335;  Hager  v.  Union  Nat. 
tain  an  action  against  the  mort-  Bank,  63  Me.  509. 


276  PLEDGE   OR  PAVv^N.  [§    293. 

negligence,  so  any  loss  that  is  the  result  of  the  ordinary  negli- 
gence of  the  bailee  while  the  property  is  in  his  custody  and 
under  his  control  would  render  him  liable  to  the  bailor  or  owner. 
"If  perishable  goods  are  pledged,  the  pledgee  is  bound  to  use 
ordinary  care  to  preserve  them;  but  if  they  perish  naturally, 
the  loss  would  fall  on  the  pledgor.  "^^  If  the  property  is  lost 
by  theft,  the  mere  fact  that  it  has  been  stolen  establishes  no  lia- 
bility ;  but  if  it  should  appear  that  because  of  the  negligence  of 
the  bailee  the  property  was  so  lost,  the  bailee  would  then  be 
held  liable.^°  The  burden  of  proof  in  such  cases  is  upon  the 
pledgor,  as  it  is  he  that  alleges  the  negligence,  and  it  is  also  in- 
cumbent upon  him  to  show  the  damage  occasioned  by  reason  of 
such  negligence.^® 

§  293.  Payment  of  debt  releases  pledged  property. — The 
payment  of  the  debt  or  the  performance  of  the  obligation  for 
which  the  property  is  pledged  releases  the  property  from  the 
lien  of  the  pledge,  and  the  pledgor  is  entitled  to  the  possession 
of  it  at  once.  The  pledgee  cannot  retain  the  pledged  property 
as  security  for  the  payment  of  other  debts  than  that  for  which 
it  was  pledged  unless  there  be  an  agreement  with  the  parties 
that  it  shall  be  so  held."  The  debt  need  not  necessarily  be  paid 
in  money;  payment  may  be  made  as  well  by  delivery  and  ac- 
ceptance of  personal  property;  anything  that  effects  a  satisfac- 
tion of  the  debt  is  a  payment.^^  The  whole  debt,  including 
principal  and  interest,  however,  must  be  paid  in  order  to  dis- 
charge the  lien,  and  until  the  whole  debt  is  paid  the  pledgee 
is  entitled  to  retain  the  property.  A  mere  renewal  of  the  note 
which  evidences  the  indebtedness  is  not  a  payment  of  the  debt 
and  unless  it  is  stipulated  to  have  that  effect  it  will  not  dis- 
charge the  lien  of  the  pledge.^®  It  goes  without  saying  that  the 
pledgor  is  entitled  to  credit  for  all  the  profits  that  have  accrued 

34  Thompson  v.  Dill,  30  Ala.  444;  Bank,  99  U.  S.  143;  Armstrong  v. 
Willets  V.  Hatch,  132  N.  Y.  41,  17       McLean,  153  N.  Y.  490. 

L.  R.  A.  193,  and  notes.  38  Strong  v.  Worden,  6  Vt.  563. 

35  Story  on  Bailments,  sec.  338;  39  Moses  v.  Trice,  21  Gratt.  (Va.) 
Jenkins  v.  National  Bank,  58  Me.  556;  Kinney  v.  Kempton,  46  Vt, 
570;  Winthrop  Sav.  Bank  v.  Jack-  80;  Dayton  Nat.  Bank  v.  Mer- 
son,  67  Me.  570;  Petty  v.  Overall,  chants'  Nat.  Bank,  37  Ohio  St. 
42  Ala.  145.  208.     In  Thorn  v.  Bank,  37  Ohio 

36  Murphey  v.  Partsch  (Idaho),  St.  254,  it  was  held:  Where  part 
23  Pac.  82.  of  a  promissory  note  is  paid,  and 

37  Biebinger       v.       Continental  a  note  in  renewal  is  executed  for 


§  294.]  pledgor's  rights  and  liabilities.  277 

to  the  pledgee  by  reason  of  the  pledge  by  way  of  increase  or 
money  received  on  account  of  the  use  of  the  property,  and  it  is 
the  duty  of  the  pledgee  to  render  a  just  and  true  account  of 
the  same  and  apply  it  upon  the  indebtedness  of  the  pledgor.*" 

§  294.  A  tender  of  the  amount  due  will  discharge  the  lien  of 
the  pledge. — A  tender  of  the  amount  due  for  principal  and 
interest,  together  with  any  expenses  which  the  pledgee  is  legally 
entitled  to,  will  discharge  the  lien  of  the  pledge.*^  It  is  neces- 
sary, however,  that  the  full  amount  should  be  tendered  to  the 
pledgee,  and  in  making  this  tender  the  usual  and  ordinary  rules 
applicable  to  tender  apply ;  that  is  to  say,  it  would  not  be  neces- 
sary for  the  pledgee  to  actually  produce  the  amount  of  money 
if  the  circumstances  were  such  as  to  preclude  the  necessity  of 
such  a  production  of  the  money ;  as,  for  example,  if  the  pledgee 
stated  that  there  would  be  no  use  of  producing  the  money  be- 
cause he  would  not  accept  it ;  nor  would  it  be  necessary  to  tender 
currency  that  is  legal  tender  if  there  was  no  objection  upon  the 
part  of  the  pledgee  to  the  money  actually  produced  and  ten- 
dered for  the  reason  that  it  was  not  such  currency.  And  it  has 
been  held  that  where  a  tender  is  made  to  a  pledgee  who  makes 
no  objection  to  the  amount,  but  does  not  surrender  the  pledge 
or  accept  the  tender,  the  lien  is  extinguished,  and  his  posses- 
sion becomes  a  wrongful  conversion,  even  though  the  tender  is 
in  fact  less  than  the  amount  due  the  pledgee.  The  tender  must 
be  unconditional  except  the  condition  that  the  property  which 
has  been  pledged  should  be  returned  to  him.  The  tender 
should  at  all  times  be  kept  good,  that  is  to  say,  in  such  a  way 
that  it  can  at  any  time  be  produced  and  brought  into  court.*- 

A  tender  legally  made  of  the  amount  is  equivalent,  so  far  as 
effecting  a  discharge  of  the  property  is  concerned,  to  a  payment 
of  the  debt,  and  it  re-invests  the  title  to  the  thing  pledged  in  the 
pledgor  and  he  can  maintain  trover  or  replevin  for  it.*^    But  it 

the    balance,    a    pledge   given    as  Mine  Co.  v.  Green,  11  Colo.  App. 

collateral  security  when  the  first  447,  "that  an  unconditional  tender 

note  was  executed  will  stand  as  of  the  amount  for  which  stock  is 

collateral  security  for  the  balance  pledged    terminated    the    lien    of 

of  the  debt  embraced  in  the  new  the  pledgee  and  also  the  right  to 

note,  in  the  absence  of  any  agree-  retain  it." 

ment  to  the  contrary.  42  Brooklyn  Bank  v.  De  Grauw, 

40  Sokup  V.  Lettillier,  123  Mich.  23  Wend.  342. 

640,  82  N.  W.  523.  43  Coggs  v.  Bernard,  2  Ld.  Ray- 

41  It  was  held  in  Tomboy  Gold       mond,  909;  Ball  v.  Stanley,  5  Yerg. 


278 


PLEDGE  OB  PAWN. 


[§  294. 


must  be  remembered  in  this  connection  that  the  pledge  of  the 
property  is  only  a  security  for  the  payment  of  the  debt,  and  in 
no  way  affects  the  debt  itself,  and  while  a  tender  of  the  amount 
due  the  pledgee,  if  rejected,  will  release  the  property  held  as 
security  from  the  lien  or  pledge  it  will  in  no  way  discharge  the 
obligation  to  pay  the  debt.** 


(Tenn.)  199.  Tender  of  the 
amount  of  the  debt  when  due  re- 
leases the  property  pledged  from 
the  lien  of  the  pledge.  Stewart 
V.  Brown,  48  Mich.  383;  Van  Han- 
sen V.  Kanouse,  13  Mich.  302; 
Moynahan  v.  Moore,  9  Mich.  9; 
Cass  V.  Higenbotom,  100  N.  Y. 
248 ;  Hathaway  v.  Fall  River  Nat. 
Bank,  131  Mass.  14;  Latta  v.  Tut- 
ton,  122  Cal.  270;  Furgeson  v. 
Popp,  42  Mich.  115.  If  the  re- 
fusal to  accept  the  tender  is  not 
absolute  or  unreasonable  it  does 
not  discharge  lien.  Waldron  v. 
Murphy,  40  Mich.  668.  While  a  ten- 
der of  amount  due  may  discharge 


the  lien,  It  will  not  discharge  the 
debt;  and  the  pledgee,  notwith- 
standing the  tender,  may  have  an 
action  for  the  debt.  The  tender 
does  not  relieve  the  pledgor  from 
his  personal  liability.  Potts  v. 
Plaisted,  30  Mich.  149;  Kortright 
V.  Cady,  21  N.  Y.  348,  78  Am.  Dec. 
145;  Mitchell  v.  McRoberts,  17 
Fed.  776.  But  a  mere  offer  to  pay 
is  not  a  tender.  Bakman  v.  Pov- 
ler,  15  Wend.  637;  Merchants' 
Bank  v.  State  Bank,  10  Wall.  (U. 
S.)  604;  Talty  v.  Fireman,  etc.  Co., 
93  U.  S.  321,  L.  ed.  886. 
**P08t,  §  298  notes. 


CHAPTER  V. 


THE  RIGHTS  AND  LIABILITIES  OF  THE  PLEDGOR  AND  PLEDGEE 
OF  CORPOREAL  PROPERTY  AFTER  DEFAULT. 


§  295.    The   subject  and  its  dis- 
cussion. 

Section  I. 

296.  The  pledgee's  remedies. 

297.  The    pledge    security   not 

lost  by  suit  and  judg- 
ment on  the  debt. 

298.  Discharge  of  lien  by  ten- 

der is  not  discharge  of 
debt. 

299.  The    pledgee    may   attach 

pledged  property  or  levy 
his  execution  upon  it, 
but  waives  the  lien  of 
pledge. 

300.  Defense  of  the  pledgor  to 

action  of  pledgee  upon 
the  debt  secured. 
801.     Foreclosure  of  the  pledge 
of  corporeal  property. 

302.  By  sale  under  the  power 

contained  in  the  con- 
tract of  pledge. 

303.  The  sale,  unless  otherwise 

allowed  by  contract, 
must  be  public. 

304.  The  notice  of  sale. 

305.  The    pledgee    cannot    be 

purchaser  at  the  sale. 

306.  The  utmost  good  faith  de- 

manded in  the  matter 
of  the  notice  of  sale. 

307.  Pledgor     cannot     compel 

pledgee  to  sell  within 
a  specified  time. 

308.  Surplus    in    the    hands    of 

the  pledgee  —  Proceeds 
of  the  sale. 

309.    Foreclosure  by  stat- 
utory proceedings. 

310.  Foreclosure  in  equity. 

311.  The    notice    and    sale    by 

virtue  of  decree. 


§  312.    When  the  pledgor  Is  In- 
solvent or  a  bankrupt. 

Section  II. 

313.  Rights,  remedies  and  lia- 

bilities of  the  pledgor 
and  pledgee  of  negotia- 
ble instruments  and 
choses  in  action  after 
default. 

314.  The  English  rule. 

315.  Recourse   to   the   pledged 

security. 

316.  The  pledgee's  diligence  in 

collecting  the  securities. 

317.  Pledgee    may    recover   in 

an  action  on  the  nego- 
tiable securities. 

318.  Compromise. 

Section  III. 

319.  Rights    and    liabilities   of 

pledgee  of  stocks  and 
bonds  of  corporations 
after  default. 

320.  Stocks    held    by    brokers 

purchased  on  margins. 

321.  Custom,  usage  and  course 

of  business. 

322.  Foreclosure  of  the  pledge 

where  stocks  are  held 
on  margins. 

Section  IV. 

323.  The  rights  and  liabilities 

of  pledgor  after  default. 

324.  The  pledgor  may  waive  ir- 

regularity. 

325.     Redemption  in  equity, 

326.  Equity  in  some  cases  will 

take   jurisdiction. 

327.  Accounting  for  the  pledged 

property. 

328.  Termination   of   the   rela- 
tion. 


280  PLEDGE  OR  PAWN.  [§    296. 

§  295.  The  subject  and  its  discussion. — The  pledging  of  the 
property  is  to  secure  the  payment  of  the  debt  or  performance 
of  the  obligation  when  due.  The  guarantee  is  not  only  that  the 
amount  due  upon  the  debt  will  be  paid  or  that  the  obligation 
will  be  performed,  but  it  is  that  the  amount  will  be  paid  and 
that  the  obligation  will  be  performed  at  the  time  it  is  due.  It 
therefore  follows  that  failure  to  pay  the  debt  or  perform  the 
obligation  at  that  time  renders  the  pledgor  in  default  and  gives 
to  the  pledgee  the  right  to  look  to  the  pledge  to  secure  the  debt 
or  obligation. 

The  rights  and  obligations  of  the  pledgor  and  pledgee  after 
such  default  will  be  the  subject  of  discussion  in  this  chapter, 
and  in  considering  these  we  have  subdivided  the  subject  as  fol- 
lows: 

(1)  The  rights  and  liabilities  of  the  pledgor  and  pledgee  of 

corporeal  property  after  default. 

(2)  The  rights  and  liabilities  of  the  pledgee  of  negotiable  in- 

struments after  default. 

(3)  The  rights  and  liabilities  of  the  pledgee  of  stocks  and 

bonds  of  corporations  after  default. 

(4)  The  rights  and  liabilities  of  the  pledgor  after  default. 

Section  I. 
The  Eights  and  Liabilities  of  the  Pledgor  and  Pledgee 
OF  Corporeal  Property  After  Default. 
§  296.  The  pledgee's  remedies. — The  property  pledged  stands 
simply  as  security  for  the  payment  of  the  debt  or  performance 
of  the  obligation.  The  realization  of  the  debt  is  the  all-im- 
portant matter,  and  the  holding  of  the  security  in  no  way  con- 
fines or  limits  the  realizing  of  the  amount  secured  to  proceed- 
ings against  the  pledged  property;  the  pledgee  may  at  his  op- 
tion foreclose  the  pledge  and  sell  the  property,  or  he  may  sue 
on  the  debt,  obtain  judgment,  and  collect  the  same  or  any  part 
of  it  by  levy  and  the  sale  of  other  property  of  the  debtor.^ 

1  Elder  v.  Rouse,  15  Wend.  218.  creditor,  on  default  of  payment, 
"Where  in  a  mortgage  of  prop-  may  bring  his  action,  and  is  not 
erty  a  party  acknowledges  his  in-  bound  in  the  first  instance  to  re- 
debtedness  to  another  in  a  sum  sort  for  satisfaction  to  the  prop- 
certain,  and  declares  that  for  the  erty."  In  Beckwith  v.  Sibley,  11 
purpose  of  securing  the  payment  Pick.  (Mass.)  482,  it  was  held 
thereof  he  transfers  the  property  "that  privia  facie  a  right  of  action, 
specified   in   the   instrument,   the  accrued   to   the   consignee  imme- 


§    297.]  BIGHTS   AND    OBLIGATIONS    AFTER    DEFAULT,  281 

§  297.  The  pledge  security  not  lost  by  suit  and  judgment  on 
the  debt. — The  property  is  pledged  as  security  for  the  payment 
of  the  debt,  and  the  only  thing  that  will  discharge  the  pledged 
property  from  the  lien  of  the  pledge  is  payment  or  discharge 
of  the  obligation;  as  the  obtaining  of  a  personal  judgment  can 
in  no  way  be  said  to  be  a  payment  or  discharge  of  the  indebted- 
ness it  cannot  affect  the  pledge.  The  pledgee  may  therefore 
have  a  judgment  against  the  pledgor  and  at  the  same  time  hold 
the  pledge  as  security  for  the  debt,  unless  there  is  some  con- 
tract or  agreement  limiting  or  changing  this  legal  right. 

In  Wallace  v.  Finnagan^  the  supreme  court  of  Michigan  say: 
"A  person  holding,  collateral  security  is  not  bound,  unless  he 
chooses;  to  resort  to  it  before  suing  upon  his  principal  claim. 
When  that  claim  is  satisfied  he  may  be  compelled  to  release  or 
re-assign  the  collaterals,  but  his  right  to  sue  the  claim  itself  is 
an  absolute  one  and  not  in  any  way  affected  by  his  possession 
of  the  securities,  and  he  cannot,  therefore,  be  compelled  to  sur- 
render them  as  a  condition  of  enforcing  his  legal  demand. ' '  So 
a  pledgee  is  not  bound  to  surrender  the  pledged  property  be- 
fore he  can  proceed  to  sue  and  obtain  judgment  upon  the  per- 
sonal obligation.^     Judgment  may  be  obtained,  execution  or  at- 

diately  upon  his  making  the  ad-  quired  to  exhaust  his  security  be- 
vances  to  the  consignor,  notwith-  fore  enforcing  his  personal  rem- 
standing  he  had  a  lien  upon  the  edy  upon  the  debt."  Grand  Island 
notes  as  security  for  the  debt  due  Sav.  &  Loan  Ass'n  v.  Moore,  40 
him."  Whitaker  v.  Sumner,  20  Neb.  686;  De  Cordova  v.  Barnum, 
Pick.  117.  "A  creditor  holding  9  N.  Y.  Sup.  237.  "Where  col- 
collateral  security  may  neverthe-  laterals  are  deposited  with  a 
less  bring  an  action  upon  his  de-  broker  to  secure  the  result  of  a 
mand  and  attach  property  of  the  sale  and  purchase  of  stock,  he 
debtor  to  satisfy  the  judgment."  holds  the  collaterals  as  a  pledge, 
Whitwell  V.  Brigham,  19  Pick.  399.  and  is  not  bound,  in  the  absence 
"In  the  absence  of  a  statute,  or  of  an  agreement,  to  sell  or  return 
stipulation  to  the  contrary,  the  them  before  bringing  suit  to  re- 
possession of  the  pledged  prop-  cover  the  loss  resulting  from  .the 
erty  does  not  suspend  the  right  of  transaction."  Germania  Savings 
the  pledgee  to  proceed  personally  Bank  v.  Peuser,  40  La.  796; 
against  the  pledgor  for  his  debt  Barnes  v.  Bradley,  56  Ark.  105, 
without  selling  the  goods."  So-  Pate  v.  Hoffman,  16  N.  Y.  Sup.  74. 
noma  Valley  Bank  v.  Hill,  59  Cal.  3  "it  is  no  defense  to  a  suit  on 
107.  a  note  that  collateral  security 
2 14  Mich.  170.  "In  the  absence  given  has  not  been  returned  or 
of  special  equities  a  pledgee  of  accounted  for."  Ambler  v.  Ames, 
personal  property  will  not  be  re-  1  App.  D.  C.  191, 


282  PLEDGE  OB  PAWN.  [§    298. 

tacliment  against  other  property  may  be  levied,  and  it  has  been 
held  that  even  committing  the  debtor's  body  to  prison  on  an 
execution  for  debt,  where  such  a  proceeding  is  permitted,  would 
in  no  wise  lessen  or  impair  the  right  of  the  pledgor  to  hold  the 
pledged  property  as  security.  The  pledgee  may,  after  obtain- 
ing the  judgment,  levy  upon  and  sell  other  property,  and  if  the 
amount  realized  upon  such  sale  is  not  sufficient  to  discharge  the 
debt,  he  may  afterward  sell  the  pledged  property  which  he 
holds  as  security  upon  foreclosure  of  the  pledge  for  the  balance ; 
or  he  may  foreclose  his  pledge  and  bring  an  action  and  recover 
a  judgment  for  any  deficiency  after  sale  of  the  pledged  prop- 
erty, and  proceed  to  collect  his  judgment  for  deficiency  by  execu- 
tion and  sale  of  other  property.* 

§  298.  Discharge  of  lien  by  tender  is  not  discharge  of  debt. 
A  tender  of  the  amount  of  the  indebtedness  which  is  refused  by 
the  pledgee  may  operate  as  a  discharge  of  the  lien  of  the  pledge 
and  entitles  the  pledgor  to  release  and  return  of  the  pledged 
property.  Such  a  tender  and  release,  however,  will  not  dis- 
charge the  debt  or  obligation,  and  the  pledgee  may,  after  the 
lien  of  the  pledge  has  thus  been  released,  and  after  having  been 
deprived  of  the  property  which  he  held  as  security,  bring  an  ac- 
tion to  recover  the  debt  and  obtain  judgment  and  have  execu- 
tion for  the  same,  and  levy  upon  and  sell  the  property  of  the 
pledgor  to  satisfy  the  demand.'' 

*  Smith  V.  Strout,  63  Me.  205;  pledgee  may  have  an  action  for 

Sonoma  Valley  Bank  v.   Hill,   59  the  amount  of  his  debt.     Potts  v. 

Cal.    107;    Whitewill   v.    Brigham,  Plaisted,     30     Mich.     149;     Kort- 

19  Pick.  117;   Morse  v.  Woods,  5  right  v.   Cady,   21   N.   Y.   328,   17 

N.  H.  299.    Where,  however,  after  Am.  Dec.  145;   Norton  v.  Baxter, 

the  suit  is  commenced  the  pledgee  41  Minn.  146,  4  L.  R.  A.  305,  and 

sold  the  pledged  property  held  as  note  306.   "In  one  respect  a  tender 

security,    and    realized    upon    the  is  not  equivalent  to  payment;  for 

sale   a  greater  amount  than   the  although  the  lien  is  discharged  by 

amount  of  the   debt  upon   which  either,  the  debt  is  not  discharged 

suit  was  brought,  it  was  held  that  by  a  tender,  but  the  pledgee  may 

such  a  sale  would  abate  the  suit;  still  maintain  an  action  for  this, 

that  it  was  equivalent  to  a  pay-  Jones   on   Pledges,   sec.   542.     At 

ment    pendente    lite.      Lewis    v.  common  law  a  tender  of  the  debt 

Jewett,  51  Vt.  378.  on  the  law  day  satisfies  the  con- 

5  While  a  tender  may  release  the  dition  of  the  mortgage  and  dis- 
lien  of  the  pledge  it  will  not  oper-  charges  the  property  from  the  in- 
ate  as  a  discharge  of  the  debt,  and  cumbrances  as  effectually  as  pay- 
notwithstanding    the    tender    the  ment,  but  the  debt  remains  and 


§    299.]  RIGHTS  AND   OBLIGATIONS  APTEB  DEFAULT.  283 

§  299.  The  pledgee  may  attach  pledged  property  or  levy  his 
execution  upon  it,  but  waives  the  lien  of  the  pledge. — It  is  also 

well  settled  that  the  pledgee,  or  his  assignee,  may  sue  the  pledgor 
on  his  personal  obligation  and  levy  an  execution  in  the  suit 
upon  the  pledged  property.  He  may  commence  his  suit  by  at- 
taching the  property  pledged,  or  may  attach  the  property  dur- 
ing the  pendency  of  the  suit;  but  it  seems  to  be  generally  held 
that  if  the  plaintiff,  pledgee  or  assignee,  attaches  the  pledged 
property  which  he  holds  as  security,  or  levies  upon  it  an  execu- 
tion sued  out  in  his  action  against  the  pledgor,  he  waives  the 
lien  of  pledge;  he  cannot  hold  the  property  by  virtue  of  the 
pledge  and  at  the  same  time  hold  it  by  attachment  or  execution 
levy.  By  the  levy  of  the  writs  or  either  of  them  he  asserts  that 
the  property  is  the  property  of  the  pledgor,  and  that  possession 
may  be  taken  to  satisfy  the  judgment,  and  it  would  seem  that  by 
this  act  the  pledgee  would  be  estopped  from  asserting  a  right  in 
himself  to  hold  possession  of  the  property.  The  claim  of  posses- 
sion by  the  pledgee  by  reason  of  the  pledge  would  be  antagonistic 
to  the  claim  of  the  officer  by  virtue  of  the  levy  of  the  writ  which 
the  pledgee  has  directed.®  The  supreme  court  of  Kansas,  in 
Jones  V.  Scott  ^  held  that  where  property  exempt  from  execu- 
tion has  been  pledged,  the  exemption  is  waived,  and  the  property 
may  be  sold  by  virtue  of  an  execution  issued  on  the  judgment 
recovered  on  the  debt  secured. 

It  Avould  seem  that  the  reasoning  of  the  court  might  be  ques- 
tioned in  this  case.  If  the  levying  of  an  execution  waives  the 
lien,  the  moment  the  lien  is  waived  the  property  right  that  had 
been  conveyed  to  the  pledgee  becomes  re-invested  in  the  pledgor. 


may  be  recovered  by  action  at  cific  articles  of  personal  property 
law.  A  tender  of  the  debt  after  that  a  tender  operates  as  a  satis- 
its  maturity  extinguishes  the  lien  faction  of  the  demand.  Mitchell 
on  personal  property  pledged  to  v.  Roberts,  17  Fed.  776;  Moyna- 
secure  its  payment;  a  pledgor  han  v.  Moore,  9  Mich.  9;  Shields 
may  recover  the  pledge  or  its  v.  Lozier,  35  N.  J.  Law,  496; 
value  in  any  proper  form  of  ac-  Story  v.  Krewson,  55  Ind.  397; 
tion  without  keeping  the  tender  Perre  v.  Castro,  14  Cal.  519;  Hem- 
good,  or  bringing  the  money  into  melmann  v.  Fitzpatrick,  50  Cal. 
court,  and  the  pledgee  may  have  650. 

his  action  for  the  debt.     A  debt  « Legg  v.  Willard,  17  Pick.  140; 

payable   in   money   is   never   dis-  Buck  et  al.  v.  Ingersoll,  11  Met. 

charged  by  a  tender;    it  is  only  226. 

where  a  debt  is  payable  in  spe-  ^  lo  Kan.  33. 


284  PLEDGE  OR  PAWN,  [§    300. 

and  he  holds  it  as  he  holds  any  other  property  that  is  exempt 
from  execution.  No  agreement  or  contract  waiving  exemption 
from  execution  can  be  said  to  have  been  contemplated  at  the 
time  of  entering  into  the  contract  of  pledge.  The  pledgor  re- 
served the  right  to  redeem  the  property,  the  right  to  have  it 
sold,  if  sold  at  all,  by  virtue  of  the  power  in  the  pledge,  or  regu- 
larly foreclosed  as  provided  by  law,  which  is  an  entirely  dif- 
ferent procedure  than  that  by  execution,  levy  and  sale.  To 
hold  that  exempt  property  which  has  been  pledged  is  subject  to 
levy  and  sale  upon  an  execution  by  reason  of  its  having  been 
pledged  for  the  same  debt  would  be  permission  to  vary  the  con- 
tract by  which  the  pledge  is  created  without  the  consent  of  the 
party  pledgor.  The  policy  of  the  law  is  to  exempt  certain  prop- 
erty from  execution.  It  is  a  statutory  privilege,  and  a  contract 
of  waiver  of  that  privilege  would  necessarily  be  subject  to  a 
strict  construction.^ 

§  300.  Defense  of  the  pledgor  to  action  of  pledgee  upon  the 
debt  secured. — The  right  of  action  upon  the  debt  secured  by 
the  pledged  property  is  entirely  independent  of  and  distinct 
from  the  contract  of  pledge,  and  so  the  pledge  is  in  no  way  af- 
fected by  an  action  for  the  debt;  nor  can  the  pledgor  offset  the 
pledged  property  to  the  claim  of  the  pledgee  in  such  action ;  ^ 
nor  could  he  recoup  damages  claimed  because  of  a  depreciation 
of  the  property  while  in  the  possession  of  the  pledgee,  though 
such  depreciation  occurred  after  the  debt  was  due  and  at  a  time 
when  the  pledged  property  could  have  been  sold  for  the  debt. 
This  is  true  even  though  the  pledgor  at  such  time  requested  the 
pledgee  to  sell  the  property.^** 

Conversion  of  the  property  by  the  pledgee  would  no  doubt 
raise  a  question  of  right  on  the  part  of  the  pledgor  by  way  of 
defense  to  an  action  upon  the  debt.     In  many  of  the  states  stat- 

8  Jones  on  Pledges,  sec.  599.  charge    of     the     note;     but     the 

9  Bank  v.  Jackson,  67  Me.  570.       pledgee  is  not  bound  to  sell,  and 

10  Rozet  V.  McClennan,  48  111.  on  failure  to  do  so  he  is  not  lia- 
345.  "Where  a  party  deposits  the  ble  for  the  loss  sustained  by  de- 
stock  of  an  incorporated  company  preciation  in  the  value  of  the 
as  collateral  security  to  a  prom-  stock  which  may  occur  after  the 
issory  note,  with  power  of  sale  to  default.  The  pledgor  should  have 
the  pledgee  in  case  of  default  of  redeemed  by  sale  of  the  stock,  or 
payment  after  a  demand  and  no-  otherwise  the  general  property 
tice,  he  may  sell  the  stock  and  remains  in  him  with  the  right  of 
apply    the    proceeds    to    the    dis-  redemption." 


§  301.] 


RIGHTS   AND    OBLIGATIONS    AFTER    DEFAULT. 


285 


utes  have  been  passed  allowing  the  pledgor  the  right  of  set-off 
in  such  cases;  but  if  there  was  no  statutory  right,  it  would 
seem  that,  if  the  amount  received  by  the  pledgee  by  reason  of 
such  conversion  was  fixed  and  liquidated,  it  would  be  allowed 
by  way  of  set-off;  and  if  the  pledging  of  the  property  was  con- 
nected with  and  a  part  of  the  transaction  of  contracting  the 
debt,  then  in  such  case  recoupment  would  be  proper  and  allow- 
able by  way  of  defense  to  the  action  upon  the  debt  in  case  of 
conversion  of  the  property  by  the  pledgee.^^ 

§  301.  The  foreclosure  of  the  pledge  of  corporeal  property. 
The  title  to  the  property  pledged  remains  in  the  pledgor  sub- 
ject to  the  right  of  possession  and  the  lien  of  the  pledgee. 
Failure  to  pay  the  debt  when  due  does  not  divest  the  pledgor  of 
the  title  or  give  to  the  pledgee  any  greater  title  than  he  before 
had.  The  pledgee  may,  however,  when  default  has  been  made 
in  the  payment  of  the  debt  for  which  the  property  was  pledged, 
proceed  to  foreclose  his  pledge,  but  until  he  has  foreclosed  the 
pledge  he  cannot  deprive  the  pledgor  of  his  title.  By  this 
foreclosure  proceeding  he  has  recourse  to  the  property,  and 
through  it,  and  by  reason  of  it,  may  subject  it  to  the  payment 


"Stern  v.  Marsh,  4  Denio,  227; 
Bank  v,  Marshall,  11  Fed.  19; 
Bigelow  V.  Walker,  24  Vt.  149. 
In  Winthrop  Bank  v.  Jackson,  67 
Me.  570,  the  question  arose  as  to 
whether  or  not  in  a  suit  upon  the 
debt  the  pledgor  could  set  off 
the  bond  which  was  the  property 
pledged  to  secure  the  payment  of 
the  debt.  The  court  say:  "What- 
ever may  be  the  contract,  express 
or  Implied,  on  the  part  of  the 
bank  growing  out  of  the  pledge 
of  this  bond  under  the  facts 
agreed,  there  can  be  no  liability 
on  the  part  of  the  bank  to  return 
the  bond  until  the  note  has  been 
paid;  its  lien  must  continue  so 
long  as  the  note  remains  in  its 
possession  unpaid.  There  is  no 
pretense  of  payment,  and  the  ten- 
der made  was  a  conditional  one 
and  therefore  of  no  effect.  The 
defendant  could  not  under  exist- 


ing facts  maintain  an  action  for 
the  bond;  the  demand  filed 
founded  upon  the  same  claim  can- 
not be  allowed."  Citing  Hough- 
ton V.  Houghton,  37  Mich.  72,  and 
Robinson  v.  Stafford,  57  Me.  163. 
Continuing,  the  court  say:  "Nor 
does  the  law  of  recoupment  apply. 
To  make  that  available  it  must 
appear  that  there  is  some  stipu- 
lation in  the  contract  sued  which 
the  plaintiff  has  violated."  A  de- 
fense by  way  of  recoupment  de- 
nies the  validity  of  the  plaintiff's 
cause  of  action  to  as  large  an 
amount  as  the  plaintiffs  allege  he 
is  entitled.  Waterman  on  Re- 
coupments, sees.  465,  466;  Har- 
rington V.  Stranton,  22  Pick.  510. 
This  can  only  be  when  the  liabil- 
ity of  both  parties  arises  out  of 
the  same  transaction,  or  from 
mutual  and  independent  cove- 
nants of  agreement. 


286  PLEDGE  OR  PAWN.  [§    302. 

of  the  debt  for  which  it  was  pledged;  the  pledgor,  however,  at 
all  times  and  until  the  pledge  is  actually  foreclosed,  has  a 
right  to  redeem  the  property  from  the  lien  of  the  pledge,  and 
this  equity  of  redemption,  as  it  is  called,  is  a  right  and  privi- 
lege belonging  to  the  pledgor,  of  which  he  cannot  be  divested 
even  by  a  contract  or  agreement  made  at  the  time  of  the  pledge ; 
but,  as  has  been  shown,  by  a  subsequent  contract  for  a  valu- 
able consideration  he  might  dispose  of  his  equity  of  redemp- 
tion.^2 

Foreclosure  of  the  pledge  is  generally  effected  in  one  of  three 
ways : 

(1)  By  sale  under  the  power  contained  in  the  contract  of 
pledge. 

(2)  By  statutory  proceedings. 

(3)  By  bill  in  chancery  and  obtaining  a  decree  of  the  court 
for  the  sale  of  the  property. 

§  302.  (1)  By  sale  under  the  power  contained  in  the  con- 
tract of  pledge. — It  the  pledged  contract  be  in  writing,  it  usu- 
ally contains  an  authorization  to  the  pledgee,  in  default  of  pay- 
ment of  the  debt  or  the  performance  of  the  obligation  at  the 
time  and  in  the  manner  provided  for  payment  and  perform- 
ance, to  sell  the  pledged  property  either  at  public  or  private 
sale.  This  authorization  to  sell  the  property  is  called  the  power 
of  sale  in  the  contract.  This  power  to  sell,  however,  at  public 
sale,  even  though  it  is  not  contained  in  the  written  contract, 
or  in  case  there  is  no  written  contract,  but  a  mere  pledge  of  the 
property  for  the  payment  of  the  debt  or  the  performance  of 
the  obligation,  is  implied  from  the  pledging  of  the  property. 
The  procedure  is  sometimes  called  "a  sale  at  common  law,"  or 
"a  common-law  foreclosure,"  and  the  right  to  sell  extends  as 
well  to  the  assignee  of  the  pledgee's  interest  as  to  the  pledgee.^' 
There  are,  however,  exceptions  to  the  general  rule,  as  in  case  of 

12  Coningham's  Appeal,  57  Pa.  tract  of  pledge  that  the  pledgee 
St.  474;  Mitchell  v.  Roberts,  17  might  sell  on  default  of  the 
Fed.  776.  pledgor,  such  a  right  is  presum- 

13  Alexander  v.  Burke,  22  Grat.  able  from  the  nature  of  the  trans- 
(Va.)  254;  Jerome  v.  McCarter,  action.  2  Story's  Eq.,  sec.  1008. 
94  IT.  S.  734-739.  The  court  say  In  ordinary  cases  no  special  agree- 
with  reference  to  the  sale  of  the  ment  is  necessary  to  confer  upon 
pledged  property:  They  passed  the  pledgee  power  to  sell  the 
by  delivery,  and  even  were  there  property  pledged.  The  power  is 
no  express  stipulation  in  the  con  ordinarily  incident  to  the  pledge. 


§    303.]  EIGHTS    AND    OBLIGATIONS    AFTER    DEFAULT.  287 

pledge  of  commercial  paper  as  security  for  a  loan  of  money. 
In  the  absence  of  a  special  power  for  that  purpose  the  pledgee 
is  not  authorized,  upon  non-payment  of  the  debt  and  upon  no- 
tice to  the  pledgor,  to  sell  the  securities  pledged  either  at  public 
or  private  sale,  but  he  is  bound  to  hold  and  collect  the  same  as 
they  become  due  and  apply  the  money  to  the  payment  of  the 
loan.  This  because  the  proper  mode  of  making  such  a  security 
available  would  be  by  collecting  the  money  and  not  by  selling 
the  security.^* 

§  303.  The  sale,  unless  otherwise  allowed  by  contract,  must 
be  public. — "At  common  law  a  pledgee  cannot  sell  without 
judicial  process,  unless  reasonable  notice  be  given  to  the  pledgor 
to  redeem,  and  the  pledgor  is  entitled  to  such  reasonable  notice 
not  only  of  the  pledgee's  intention  to  sell,  but  also  of  the  time 
and  place  of  the  sale,  and  the  sale  should  be  at  public  auction." 
In  McDowell  v.  Chicago  Steel  Works  et  aZ.,^"  the  court  say:  "At 
common  law,  when  property  is  pledged  to  secure  a  debt,  the  right 
to  sell  for  default  in  payment  is  conferred  by  the  law,  and 
hence  the  sale  must  be  made  subject  to  the  conditions  imposed 
by  the  law  —  that  is  to  say,  after  making  demand  and  giving 
notice;  but  where  the  pledge  is  accompanied  by  a  special  con- 
tract as  to  sale  upon  non-payment  of  the  debt,  the  right  to  sell 

14  Wheeler  v.  Newbould,  16  N.  at  public  auction  the  chattel 
Y.  392.  In  Sleeven  v.  Morrow,  4  pledged,  without  judicial  process 
Ind.  425;  Roberts  v.  Thompson,  14  and  decree  of  foreclosure,  upon 
Ohio  St.  7,  and  Jennison  v.  Parker.  giving  to  the  debtor  reasonable 
7  Mich.  335,  it  was  held  "that  the  notice  to  redeem,  although  the 
pledgee  is  bound  to  use  reason-  old  rule  existing  in  the  time  of 
able  diligence  in  the  collection  of  Glanville  required  a  judicial  sen- 
negotiable  paper  pledged  as  col-  tence  to  warrant  a  sale  unless 
lateral  security."  there  was  a  special  agreement  to 

15  124  111.  491;  Sell  v.  Ward,  81  the  contrary.  This  right  to  sell 
111.  App.  675;  National  Bank  of  upon  default  is  implied  in  the  con- 
Ill.  V.  Baker,  128  111.  533;  Story  tract  of  pledge  and  does  not  de- 
on  Bailments,  sec.  310.  "The  sale  pend  upon  any  express  stipula- 
should  be  at  public  auction."  tion."  Jerome  v.  McCarter,  94 
Wheeler  v.  Newbould,  16  N.  Y.  U.  S.  734;  McDowell  v.  Chicago 
395;  Dykers  v.  Allen,  7  Hill,  497.  Steel  Co.,  124  111.  491;  Merchants' 
"A  sale  at  the  broker's  board  is  Bank  v.  Thompson,  133  Mass.  482; 
not  a  public  sale."  Brass  v.  Hancock  v.  Franklin  Ins.  Co.,  114 
Worth,  40  Barb.  648;  Jones  on  Mass.  156;  Ogden  v.  Lathrop,  65 
Pledges,  sec.  603.  "It  is  well  set-  N.  Y.  158;  Canfield  v.  Minn.  etc. 
tied  rule  of  the  common  law  that  Ass'n  Co.,  14  Fed.  801,  15  Fed. 
a  pledgee  upon  default  may  sell  260.     See  notes  4  L.  R.  A.  586. 


288  PLEDGE  OR  PAWN.  [§    304. 

is  conferred  not  by  the  law,  but  by  the  contract  itself,  and 
hence  must  be  exercised  in  the  mode  specified  by  the  parties  in 
their  agreement.  As  such  contract  embodies  the  intention  of 
the  parties,  its  silence  as  to  notice  justifies  the  inference  that 
the  power  to  sell  without  notice  was  intended  to  be  conferred." 
§  304.  The  notice  of  sale. — The  pledgor,  the  owner  of  the 
property  pledged  for  the  payment  of  the  debt  or  the  perform- 
ance of  the  obligation,  is  specially  interested  in  having  the 
pledged  property  bring  the  best  price  possible  at  the  sale,  and 
that  it  be  not  sacrificed,  for  the  reason  that  he  is  liable  for  any 
deficiency  and  is  entitled  to  any  surplus  that  may  arise  by  the 
sale  of  the  property;  the  presumption  is  that  by  a  public  sale 
more  bidders  will  be  attracted  and  a  better  price  will  be  realized. 
The  pledgor  is  entitled  to  be  personally  notified  of  the  time  and 
place  of  the  sale,  unless  the  contract  provides  that  a  sale  may 
be  had  without  such  notice;  and  if  by  the  contract  it  is  stipu- 
lated that  to  fix  the  pledgor's  liability  a  demand  must  be  made, 
then  both  demand  and  notice  of  sale  must  be  given  to  the 
pledgor.^®  The  time  of  the  sale  of  the  property,  unless  fixed  by 
the  contract,  is  uncertain,  depending  entirely  upon  the  will  of 
the  pledgee,  and  so  the  only  way  in  which  the  pledgor  can 
know  the  time  and  place  is  by  notice  from  the  pledgee,  who  fixes 
both.  The  pledgor  has  the  right  to  redeem  at  any  time  before 
the  property  is  sold  upon  foreclosure,  and  it  is  therefore  very 
important  that  he  should  be  notified  of  the  time  and  place  when 
and  where  that  very  important  privilege  is  to  be  cut  off;  and 
so  it  is  said  that  the  pledgee  is  bound  to  give  the  pledgor 
notice  of  the  time  and  place  of  the  sale,  whether  the  debt 
is  payable  on  a  fixed  day,  or  whether  payable  immediately  or 
at  some  future  time ;  ^''  and  if  the  pledgor  cannot  be  found,  and 

16  "At  common  law,  when  prop-  the  view  that  we  take  of  the  pres- 
erty  is  pledged  to  secure  a  debt,  ent  case  there  is  but  one  question 
the  right  to  sell  for  default  in  which  requires  consideration,  and 
payment  is  conferred  by  the  law,  that  is  whether  the  pledgee  of 
and  hence  the  sale  must  be  made  the  stock  had  the  lawful  right  to 
subject  to  the  conditions  imposed  sell  it  at  private  sale  and  without 
by  the  law;  that  is  to  say,  after  notice  to  the  pledgor.  In  an  or- 
making  demand  and  giving  no-  dinary  case  of  pledge,  of  course 
tice."  McDowell  v.  Chicago  Steel  there  is  no  such  right.  The 
Works  et  al.,  124  111.  491.  pledgee  must  first  give  notice  to 

17  Jeanes'  Appeal,  116  Pa.  St.  redeem,  and  if  the  pledge  is  not 
573.    The  court  say  (p.  582) :   "In  redeemed  and  he  proposes  to  sell 


§  304. 


RIGHTS    AND    OBLIGATIONS    AFTER    DEFAULT. 


289 


for  this  reason  he  cannot  be  notified,  then  it  will  be  necessary 
for  the  pledgee  to  resort  to  judicial  proceedings  in  order  to 
foreclose  the  pledge.'^^  Formal  notice  of  the  time  and  place  of 
sale  would  not  be  necessary  if  the  pledgor  has  actual  notice.^® 
The  only  object  in  giving  notice  being  that  he  may  be  informed 
as  to  when  and  where  the  sale  is  to  take  place,  to  require  the 
pledgee  to  give  actual  notice  when  the  pledgor  already  has  full 
knowledge  upon  that  subject  would  be  to  require  a  vain  thing. 


it,  he  must  sell  it  at  public  sale 
and  after  notice  to  the  pledgor. 
If  this  is  not  done  the  pledgor's 
rights  are  unaffected  by  the  sale." 
In  Stearns  v.  Marsh,  4  Denio,  227, 
the  court  say:  "It  is  said  that  the 
law  makes  a  distinction  between 
the  case  of  a  pledge  for  a  debt 
payable  immediately,  and  one 
where  the  debt  does  not  become 
payable  until  a  future  day;  and 
that  in  the  latter  case  the  cred- 
itor is  not  bound  to  call  for  a  re- 
demption or  to  give  notice  of  sale, 
though  in  the  former  it  is  con- 
ceded that  there  must  be  such  de- 
mand and  that  notice  must  be 
given.  Non-payment  of  the  debt 
at  the  stipulated  time  did  not 
work  a  forfeiture  of  the  pledge, 
either  by  the  civil  or  at  the  com- 
mon law.  It  simply  clothed  the 
pledgee  with  authority  to  sell  the 
pledge  and  reimburse  himself  for 
his  debt,  interest  and  expenses; 
and  the  residue  of  the  proceeds  of 
the  sale  then  belonged  to  the 
pledgor.  The  old  rule  existing  in 
the  time  of  Glanville  required  a 
judicial  sentence  to  warrant  a 
sale,  unless  there  was  a  special 
agreement  to  the  contrary.  But 
as  the  law  now  is,  the  pledgee 
may  file  a  bill  in  chancery  for  a 
foreclosure  and  proceed  to  a  ju- 
dicial sale;  or  he  may  sell  with- 
out judicial  process  upon  givinj? 
reasonable  notice  to  the  pledgor 
to  redeem  and  of  the  intended 
19 


sale.  I  find  no  authority  counte- 
nancing the  distinction  contended 
for;  but  on  the  contrary,  I  under- 
stand the  doctrine  to  be  well  set- 
tled, that  whether  the  debt  be 
due  presently  or  upon  time,  the 
rights  of  the  parties  to  the 
pledge  are  such  as  have  been 
stated.  (Citing  cases.)  Nor  do  I 
see  any  reason  for  such  a  distinc- 
tion. In  either  case  the  right  to 
redeem  exists  until  a  sale;  the 
pledgor  is  equally  interested  to 
see  to  it  that  the  pledge  is  sold 
for  a  fair  price.  The  time  when 
the  sale  may  take  place  is  as  un- 
certain in  the  one  case  as  in  the 
other;  both  depend  upon  the  will 
of  the  pledgee,  after  the  lapse 
of  the  term  of  credit  in  the  one 
case,  and  after  a  reasonable  time 
in  the  other,  unless  indeed  the 
pledgor  resorts  to  a  court  of 
equity  to  quicken  a  sale.  Per- 
sonal notice  to  a  pledgor  to  re- 
deem, and  of  the  intended  sale, 
must  be  given  as  well  in  the  one 
case  as  in  the  other,  in  order  to 
authorize  a  sale  by  the  act  of  the 
party.  And  if  the  pledgor  can- 
not be  found  and  notice  cannot 
be  given  to  him,  judicial  proceed- 
ings to  authorize  a  sale  must  be 
resorted  to." 

18  Garlick  v.  James,  12  Johns. 
(N.  Y.)  146;  Ind.  &  I.  C.  Ry.  Co. 
V.  McKennan,  24  Ind    62. 

19  Loud  V.  Burke,  22  Grat.  (Va.) 
2G4;  Jones  on  Pledges,  sec.  613. 


290  PLEDGE  OR  PAWN,  [§    305. 

§  305.  The  pledgee  cannot  be  purchaser  at  the  sale. — The 
relation  of  the  pledgee  and  the  pledgor  may  be  said  to  be  fiduci- 
ary. The  pledgee  in  a  sense  holding  the  property  in  trust  for 
the  pledgor,  in  the  exercise  of  good  faith  is  bound  to  obtain 
upon  the  sale  all  that  the  property  is  reasonably  worth,  and  in 
carrying  on  the  foreclosure  sale  is  bound  to  exercise  that  good 
faith  which  is  always  required  where  like  relations  exist.  It 
may  therefore  be  said  to  be  a  general  rule  that  the  pledgee 
cannot  be  a  purchaser  at  his  own  sale.-"  It  has  been  held, 
however,  that  where  a  pledgee  makes  a  sale  under  and  within 
the  terms  of  the  pledge,  and  purchases  the  pledged  property 
himself,  such  purchase  is  not  per  se  void,  but  only  voidable  at 
the  instance  of  the  pledgor  or  one  in  privity  with  him.^^  A  pur- 
chase, however,  by  the  pledgee  at  his  own  foreclosure  sale  is 
governed  very  largely  by  the  fairness  and  good  faith  of  the 
transaction,  and  if  coupled  with  acquiescence  on  the  part  of 
the  pledgor,  or  a  waiver  of  the  irregularity,  the  title  to  the 
property  would  pass.  It  is,  however,  at  all  times  subject  to 
the  option  of  the  pledgor;  and  if  he  should  refuse  to  ratify 
the  sale  or  to  waive  the  irregularity  within  a  reasonable  time, 
the  sale  would  be  avoided  and  the  pledge  would  be  in  the  same 
condition  as  though  there  had  never  been  a  sale  upon  fore- 
closure; that  is  to  say,  a  sale  under  such  circumstances  is  not 
void,  but  voidable  at  the  option  of  the  pledgor,  who  may  elect 
to  treat  such  a  sale  as  valid  or  avoid  it.^^ 

20  Glidden    v.    Mechanics,'    etc.  on  Bailments,  sec.  319;   Torry  v. 

Bank,  53  Ohio  St.  588,  43  L.  R.  A.  Bank    of   Orleans,    7    Paige,    649; 

737.     And   see   note   43   L.   R.   A.  Hawley   v.    Cramer,    4    Cow.    736. 

737,  where  the  subject  of  sale  of  This  sale  to  the  plaintiff  was  not 

corporeal    and    incorporeal    prop-  void,  but  voidable  at  the  election 

erty  is  discussed   and  authorities  of    the    defendant.      Edwards    on 

collected  and  cited.  Bailments,  260,  261.     The  defend- 

21  Farmers'  Loan  &  Trust  Co.  ant  was  at  liberty  to  ratify  the 
V.  Toledo  &  S.  H.  R.  Co.,  54  Fed.  sale,  and  had  he  done  so  it  would 
759,  reversing  the  decree  in  43  have  been  valid  for  all  purposes. 
Fed.  223.  The  ratification  would  have  made 

22  In  Bryan  v.  Baldwin,  52  N.  Y.  it  lawful  and  relieved  it  from  any 
235,  the  court  say:  "The  plaintiff  imputation  of  being  tortious  as 
being  pledgee  of  the  stock,  and  to  him.  The  title  of  the  plaintiff 
in  that  character  exposing  it  for  to  the  stock  would  have  been 
sale,  could  not  become  the  pur-  thereby  made  perfect,  and  the  de- 
chasor  unless  the  defendant  as-  fendant  entitled  to  credit  upon 
sented   to  such   purchase.     Story  the  note  for  the  net  proceeds  of 


§    306.]  RIGHTS    AND    OBLIGATIONS    AFTER    DEFAULT. 


291 


§  306.  The  utmost  good  faith  demanded  in  the  matter  of  the 
notice  of  sale. — The  pledgee  must  exercise  the  utmost  good 
faith  at  every  step  in  the  foreclosure  of  his  pledge,  and  espec- 
ially is  this  demanded  in  the  matter  of  the  notice  of  sale  in  fix- 
ing the  time  and  place.  Reasonable  time  must  be  given  so  that 
the  pledgor  may,  if  he  can,  redeem  his  property  from  the  pledge, 
and,  if  he  cannot  redeem  it,  procure  purchasers  to  attend  the 
sale,  that  there  may  be  plenty  of  bidders  and  thus  the  property 
bring  a  fair  price.  A  proper  place  must  be  designated,  for 
by  fixing  the  sale  at  an  unsuitable  place  the  property  might  not 
be  sold  at  anything  like  a  fair  price.  As,  for  example,  it  could 
not  be  said  to  be  fair  or  just  to  a  pledgor  of  railroad  stocks, 
that  are  generally  bought  and  sold  at  money  centers,  to  adver- 
tise their  sale  at  some  country  cross-roads  where  the  attend- 
ance would  be  very  small,  and  the  bidders  few  if  any,  while  if 


the  sale.  But  the  defendant  has 
not  done  this,  but  has  elected  to 
treat  the  purchase  by  the  plaintiff 
as  illegal.  This  avoids  the  sale, 
and  that  being  avoided  by  the  de- 
fendant, the  parties  are  remitted 
to  their  rights  the  same  as  though 
no  sale  had  been  attempted;  the 
defendant  is  liable  upon  the  note, 
and  the  plaintiff  still  holds  the 
stock  as  pledgee."  First  Nat. 
Bank  v.  Rush,  85  Fed.  539;  Ross 
V.  Barker  (Neb.),  78  N.  W.  730. 
"It  has  often  been  decided  that 
where  notes,  bonds  or  shares  of 
stock  have  been  placed  as  col- 
lateral securities  in  default  of 
payment  of  the  principal  debt, 
they  may  with  due  procedure  be 
sold,  and  if  purchased  by  the 
pledgee  the  sale  is  voidable  at  the 
election  of  the  pledgor,  and  he 
may  redeem  the  securities  or 
treat  the  sale  as  valid  and  have 
the  amount  of  the  bid  or  purchase 
price  credited  on  the  debt."  Fi- 
delity Ins.,  Trust  &  Safe  Co.  v. 
Roanoke  Iron  Co.,  81  Fed.  439; 
Glidden  v.  Bank,  53  Ohio  St.  588; 


Steelman  v.  Weiskittle,  88  Md. 
519.  "A  sale  by  the  pledgee  of 
the  article  held  in  pledge  which  is 
merely  colorable,  and  which  is 
subsequently  rescinded  by  the 
pledgee,  who  takes  back  such  ar- 
ticles into  his  possession,  is  wholly 
inoperative  to  divest  the  pledgor's 
title,  and  by  reporting  such  a  pre- 
tended sale  to  the  pledgor,  there- 
by leading  him  to  believe  that 
his  rights  in  the  pledge  are  gone, 
the  pledgee  dibentitles  himself  to 
make  a  subsequent  sale  of  the 
pledge  without  giving  the  pledgor 
notice  of  the  facts  and  of  his  in- 
tention to  make  such  sale."  Leahy 
V-  Lobdell,  Farrell  &  Co.,  80  Fed. 
665.  Held  in  Massachusetts,  under 
statute  authorizing  pledgee  on  no- 
tice to  pledgor  to  sell  the  pledge 
at  public  auction,  that  the  pledgee 
is  precluded  from  buying  in  the 
property  at  the  sale,  since  his 
duty  to  the  pledgor  to  get  the 
highest  price  is  inconsistent  with 
his  interest  as  a  purchaser.  Lord 
V.  Hartford,  175  Mass.  320. 


292  PLEDGE  OR  PAWN.  [§    307. 

the  pledged  property  consisted  of  farming  utensils  it  might  be 
a  very  proper  place  for  holding  the  sale.  All  the  circumstances 
surrounding  the  particular  case  must  be  considered;  the  resi- 
dence of  the  parties,  and  the  place  where  it  would  be  con- 
venient and  reasonably  expected  that  the  sale  would  take  place. 
The  time  and  place  must  be  suitable  in  view  of  all  the  facts. 
"Where  railroad  bonds  were  pledged  in  Texas  and  sold  in  New 
York  it  was  held  a  good  sale,  as  New  York  is  the  financial  cen- 
ter of  the  country. ' '  ^^ 

§  307.  Pledgor  cannot  compel  pledgee  to  sell  within  a  speci- 
fied time. — The  pledgor  at  all  times  before  the  property  is  sold 
on  foreclosure  has  the  privilege  of  redeeming  the  property  by 
discharging  the  debt  or  obligation  for  which  it  stands  pledged, 
and  for  this  reason  it  is  said  he  cannot,  in  the  absence  of  a 
contract  or  agreement,  make  it  the  duty  of  the  pledgee  to  sell 
the  pledged  property  within  a  specified  time  by  request  or  by 
directing  him  to  do  so.  The  supreme  court  of  Minnesota  in 
discussing  this  question  say:  "There  might  be  such  a  contract 
between  the  pledgor  and  pledgee  as  would  make  it  the  absolute 
duty  of  the  latter  to  sell  within  a  specified  time,  in  which  case 
his  liability  by  reason  of  failure  to  sell  within  the  time  would 
not  depend  on  negligence.  But  in  the  absence  of  some  such 
contract  there  is  no  liability  of  the  pledgee  to  the  pledgor  except 
for  negligence.  The  exercise  of  ordinary  care  in  respect  to  the 
thing  pledged  is  the  duty  which  the  law  imposes  on  a  pledgee, 
and  for  a  breach  of  that  duty  only,  does  he  become  liable. 
After  the  contract  of  pledging  is  made,  neither  party  can,  by 
anything  he  alone  may  do,  vary  the  duties  or  powers  attaching 
to  the  relation.  Some  cases  hold  that  a  request  to  sell  may  be 
an  element  in  the  proof  of  negligence,  but  we  express  no  opinion 
on  the  point,  nor  do  we  express  any  whether,  in  the  absence 


23  King  V.  Texas  B.  &  Ins.  Co.,  acted  in  good  faith  to  protect  the 

58  Tex.  669.    In  Hagan  v.  National  pledgor.    But  where  the  terms  of 

Bank,  182  Mo.  319,  81  S.  W.  171,  the    pledge    conferred    the    power 

the  court  set  aside  sale  of  corpo-  to  purchase  to  the  pledgee,  at  the 

rate  stock.     In  Perkins  v.  Apple-  foreclosure    sale,    the    Massachu- 

gate,  27  Ky.  L.  522,  85  S.  W.  723,  setts    court    held    such    purchase 

the  court  set  aside  the  sale,  hold-  valid  and  refused  to  set  aside  the 

ing  that  the  pledgee,  on  becoming  sale.     Jennings  v.  Wyzanski,  188 

the    buyer,    must    show    that    the  Mass.  285,  74  N.  E.  347. 
sale  was  fairly  made,  and  that  he 


§    307. j  RIGHTS   AND    OBLIGATIONS    AFTER    DEFAULT.  293 

of  express  contract,  it  is  the  duty  of  the  pledgee  at  any  time 
to  sell  a  chattol  pledged. ' '  ^* 

The  question  has  sometimes  arisen  whether,  in  case  of  a  fall- 
ing market,  the  pledgor  could  not  by  request  or  demand  compel 
the  pledgee  to  sell  the  property,  and  if  he  failed  to  do  so, 
whether  in  such  case  the  pledgee  would  not  be  liable  for  any 
depreciation  in  value  where  the  sale  was  made  at  a  time  when 
the  property  had  materially  depreciated,  and  the  price  for  which 
it  was  sold  was  very  much  less  than  could  have  been  obtained 
for  it  at  the  time  the  request  was  made  by  the  pledgor.  It  seems, 
however,  to  be  well  settled  that  the  pledgee  is  not  compelled  to 
sell  the  pledge  even  when  requested  so  to  do  by  the  pledgor,  for 
the  reason  that  the  pledgor  always  has  a  remedy;  for  if  he 
wishes  to  save  himself  from  depreciation  in  the  value  of  the 
pledge,  he  can  redeem  the  property.  This  is  always  his  right; 
and  so  it  follows  that  he  cannot  charge  the  creditor  with  such 
depreciation  without  having  first  tendered  to  him  the  amount 
of  the  debt.^^  But  if  the  refusal  to  sell  upon  request  is  simply 
by  reason  of  bad  faith,  or  a  faulty  discretion  equal  to  negli- 
gence, in  such  case  it  would  seem  that  there  might  be  a  liability 
to  which  the  bailee  would  be  compelled  to  answer.  This  is  re- 
ferred to  by  the  court  in  Wells  et  al.  v.  Wells,^^  where  they  say : 
''It  is  well  understood  that  in  order  to  charge  the  pledgee  of 
such  a  collateral  as  this  with  the  collateral  as  a  payment  pro 
tanto  upon  his  debt,  he  must  be  chargeable  with  bad  faith  or 
faulty  discretion  in  the  course  taken  in  respect  to  the  collateral, 
so  that  it  would  be  detrimental  and  unjust  toward  the  pledgor 
not  so  to  charge  the  pledgee."  This  is  no  doubt  the  rule  in 
case  the  property  pledged  is  negotiable  instruments.  In  such 
case  it  is  the  duty  of  the  pledgee  not  only  so  to  deal  with  them 
as  not  to  destroy  their  value,  but  to  use  ordinary  diligence  in 
making  them  available  for  the  payment  of  the  debt,  and  if  he 
suffers  indorsed  paper  to  mature  without  resorting  to  the  neces- 

2*  Cooper  V.  Simpson,  41  Minn.  debtor   in   it,   through  the   supine 

46,  4  L.  R.  A.  194.  negligence    of    the    creditor,    he 

25  Jones  on  Pledges,  sec.  606;  must  account  for  the  loss  to  his 
Taggard  v.  Curtenius,  15  Wend.  debtor."  Baker  v.  Briggs,  8  Pick. 
155;  Rozet  v.  McClennan,  48  111.  129;  Paine  v.  Packard,  13  Johns. 
345.  174;    5    Wait's    Actions    and    De- 

26  53  Vt.  1;  Hanna  v.  Holton,  78  fenses,  234;  Cooper  v.  Simpson, 
Pa.  St.  334.    "When  the  collateral  41  Minn.  46. 

is  lost  by  the  insolvency  of  the 


294  PLEDGE  OR  PAV.N.  [§  309. 

sary  steps  to  charge  the  indorser,  or  fails  to  pursue  reasonably 
the  primary  parties,  he  may  be  held  responsible  for  any  loss 
that  may  ensue.^^  To  what  extent,  however,  this  rule  applies 
where  the  pledged  property  is  chattels  and  not  in  the  nature  of 
negotiable  paper,  is  not  so  well  settled;  but  it  Avould  seem  that 
Avhere  the  pledge  is  such  property,  the  obligation  to  sell  could 
not  be  fixed  upon  the  pledgee  upon  notice  and  demand  unless  it 
could  be  shown  that  the  refusal  was  an  exercise  of  bad  faith,  and 
that  the  pledgor  would  be  obliged  to  rely  upon  his  right  to  re- 
deem in  order  to  protect  himself  because  of  the  depreciation. 

§  308.  Surplus  in  the  hands  of  the  pledgee,  proceeds  of  the 
sale. — The  only  right,  title  or  property  of  the  pledgee  in  the 
property  pledged  is  co-extensive  with  the  securing  of  the  pay- 
ment of  the  debt  or  the  performance  of  the  obligation.  The 
legal  title  to  the  property  is  in  the  pledgor,  subject  only  to  this 
right  of  security  in  the  hands  of  the  pledgee.  It  therefore  fol- 
lows that  whenever  the  purpose  of  the  pledge,  that  is  to  say, 
the  securing  of  the  payment  of  the  debt,  is  satisfied,  the  pledgor 's 
right  to  the  remainder  is  absolute.  The  pledgee  being  simply 
a  trustee  for  this  amount  is  bound  to  account  to  the  pledgor 
for  whatever  he  obtains  upon  the  sale  of  the  pledged  property, 
and  after  deducting  the  amount  due  upon  the  indebtedness  and 
the  expenses  of  the  sale  or  other  legal  expenses,  he  must  pay 
over  to  the  pledgor  any  surplus  that  may  remain  in  his  hands; 
and  if  he  fails  or  refuses  so  to  do,  the  pledgor  may  collect  the 
surplus  due  him  in  an  action  of  assumpist .^^ 

§  309.  (2)   Foreclosure  by  statutory  proceedings. — In 

nearly  all  of  the  states  the  foreclosure  of  the  pledge  or  pawn 
has  been  regulated  by  statute.  In  some  of  the  states,  however, 
the  statute  is  so  worded  that  it  does  not  preclude  a  common- 
law  foreclosure.  A  citation  of  the  several  statutes  and  a  dis- 
cussion thereof  would  be  impracticable  here.  However,  it  may 
be  remarked  that  the  statutes  of  the  particular  state  where  fore- 
closure is  to  be  had  should  be  examined.^^ 

27  Easton  v.   German   American  28  Jones   on   Pledges,   sees.   649, 

Bank,  24  Fed.  523;    affirmed,   127  650;    Foster  v.  Berg,   104   Pa.   St. 

U.   S.   532.     "If  the   pledgee  sells  324;  Miles  v.  Walther,  3  Mo.  App. 

the  pledge  fairly  and  publicly  he  96;    Loomis  v.  Stave,  72  111.  623; 

is    not    answerable    for    the    loss  Taylor  v.  Turner,  87  111.  296. 

from  its  selling  for  less  than  its  29  in    Massachusetts    and    Cali- 

estimated    value."      Ainsworth    v.  fornia  the  statute  does  not  affect 

Bowen,  9  Wis.  348.  a   common-law    foreclosure.      Col- 


§    312.]  RIGHTS    AND    OBLIGATIONS    AFTER    DEFAULT.  295 

§  310.  (3)  Foreclosure  in  equity. — When  the  business  is 
complicated  and  the  amount  of  the  indebtedness  is  large,  and 
a  large  amount  of  pledged  property  is  held  to  secure  its  pay- 
ment, or  where  the  pledgor  cannot  be  personally  notified  because 
of  absence  or  for  some  other  reason,  or  where  the  legal  remedy 
is  not  adequate,  and  this  even  though  the  statute  provides  the 
only  mode  of  foreclosing  the  pledge,  or  where  the  rights  and 
remedies  of  the  pledgee  are  questioned  or  denied,  the  pledgee 
may  and  should  file  a  bill  in  equity,  and  through  the  court  of 
chancery  obtain  a  decree  of  foreclosure  and  for  the  sale  of  the 
pledged  property.  And  so  it  may  be  said  that  where  there  are 
conflicting  claims  to  the  pledged  property,  and  proceedings  in 
the  ordinary  way  by  common-law  foreclosure  would  not  settle 
the  conflicting  claims,  or  where  there  are  intervening  rights,  no 
matter  how  they  may  arise, —  in  such  case  the  ordinary  statu- 
tory foreclosure  or  the  common-law  foreclosure  would  be  by  no 
means  adequate,  and  the  pledgee  should  proceed  by  foreclosure 
in  equity,  and  thus  by  a  decree  of  that  court  settle  all  the  con- 
troversies between  the  parties.^"  It  has  been  said  that  some 
question  might  arise  as  to  the  jurisdiction  of  the  equity  court 
where,  by  statute,  the  foreclosure  is  limited  to  those  cases  where 
the  remedy  by  sale  or  notice  is  not  complete.  But  it  has  been 
held  that  where  the  foreclosure  in  such  cases  involve  an  account- 
ing, the  equity  jurisdiction  will  be  upheld,^^  but  if  it  is  merely 
a  computation  it  will  be  denied.^^ 

§  311.  The  notice  and  sale  by  virtue  of  decree. — The  man- 
ner of  giving  the  notice  of  sale,  the  notice  as  to  time  and  place, 
the  sale,  and  the  entire  procedure,  where  the  foreclosure  is  had 
in  a  court  of  equity,  is  fixed  and  settled  by  the  practice  and  pro- 
cedure of  the  chancery  court;  all  such  directions  are  generally 
given  in  the  decree  of  foreclosure. 

§  312.  When  the  pledgor  is  insolvent  or  bankrupt. — The 
right  of  the  pledgee  to  hold  and  possess  the  pledged  property, 
when  the  pledge  is  without  fraud  and  honestly  created  to  se- 
cure the  debt  or  obligation,  is  an  absolute  property  right  of  the 
pledgee  and  he  cannot  be  deprived  of  it  by  the  pledgor  or  the 

ville  V.  Loud,   135   Mass.   41,  and  si  Durant    v.    Einstine,    5    Robt. 

Mange  v.   Heringhi,  26   Cal.   527;        (N.  Y.)  423. 

Jones   on   Pledges,  sec.   616.  32  Dupay  v.  Gibson,  30  III.   197. 

30  Horner    v.    Savings    Bank,    7 
Conn.  478. 


296  PLEDGE  OR  PAWN.  [§    312. 

pledgor's  creditors.  It  therefore  follows  that  the  assignee  in 
bankruptcy  cannot  convert  this  interest  of  the  pledgee  in  the 
pledged  property  as  an  asset  of  the  pledgor.  He  can  only  take 
the  interest  of  the  pledgor  in  the  property,  which,  as  we  have 
seen,  is  the  title  to  the  property  subject  to  the  pledge;  and  it 
has  been  held  that  if  an  assignee  realizes  on  pledged  property 
in  the  possession  of  the  pledgor  for  temporary  purposes,  he  holds 
the  proceeds  in  trust  for  the  pledgee.^^  In  Gibson  v.  Warden  ^* 
the  court  say :  "  In  cases  like  this  the  assignee  stands  in  the  place 
of  the  bankrupt;  his  rights  are  their  rights;  and  theirs,  like  the 
liens  of  judgments  at  law,  are  subordinate  to  all  the  prior  liens, 
legal  and  equitable,  upon  the  property  in  question."  If  the 
pledge  is  fraudulent,  then  the  assignee,  standing  in  the  place  of 
and  for  the  pledgor,  and  also  for  the  creditors  of  the  pledgor, 
may  proceed  to  have  the  pledge  set  aside,  and  the  pledgor  by 
collusion  with  the  pledgee  could  not  thwart  the  rights  of  the 
assignee  in  this  regard.  The  assignee  can  do  just  what  the 
honest  pledgor  ought  to  do;  nor  can  he  be  defeated  by  any 
fraudulent  agreement  of  the  pledgor  or  pledgee.  ' '  So  while  the 
pledgor  could  not  have  the  pledge  set  aside  as  fraudulent,  the 
assignee  might. ' '  ^^ 

The  authorities  are  not  entirely  harmonious  as  to  the  pro- 
ceedings that  the  pledgee  may  take  in  proving  his  claim  and  ob- 
taining a  settlement  of  the  pledge  and  securing  satisfaction  for 
the  pledged  indebtedness.  It  seems  clear,  however,  that  the 
pledgee  may  sell  the  pledged  property  upon  default  and  apply 
the  proceeds  of  the  sale  after  the  pledgor's  insolvency.  The  as- 
signee having  taken  possession  of  the  rights,  interests  and  prop- 
erty of  the  pledgor,  undoubtedly  should  receive  notice  of  the 
sale  as  well  as  the  pledgor,  because  legally  he  stands  in  the  place 
of  the  pledgor  and  is  representing  a  property  interest  in  the 
pledge;  but  the  assignee,  it  would  seem,  could  not  deprive  the 
pledgee  of  his  right  to  foreclose,  nor  could  he  obstruct  the  sale 
for  the  reason  that  the  property  will  not  at  the  time  bring  a 
good  price.  He  would  be  subject  to  the  same  rules  and  princi- 
ples, already  discussed,  that  govern  the  pledgor  in  such  like 

33  In  re  Wiley,  4  Biss.    (U.  S.)       dall  &  Co.  v.  Mason,  7  Ohio  St. 
171;  Jerome  v.  McCarter,  94  U.  S.       199. 
734,  24  L.  Ed.  136.  35  Bank    of   Alexandria   v.    Her- 

S4  14   Wall.    (U.    S.)    248;    Ken-      bert,  8  Cranch  (U.  S.),  36;  Casey 

v.  Caveroc,  96  U.  S.  467. 


§    313.]  RIGHTS   AND    OBLIGATIONS    AFTER    DEFAULT.  297 

eases,  and  the  only  remedy  of  the  assignee,  or  of  the  creditors  in 
such  case,  would  be  to  redeem  the  property  by  paying  the  debt.^" 
Should  the  pledged  property  bring  more  than  the  amount  due 
the  pledgee,  then  the  pledgee  must  account  to  the  pledgor's  as- 
signee for  the  surplus;  and  should  the  property  bring  less  than 
the  amount  due  the  pledgee,  he  has  a  claim  for  the  deficiency 
against  the  estate,  and  in  that  case  must  take  pro  rata  with 
other  creditors.^'^ 

Section  II. 

§  313.  Rights,  remedies  and  liabilities  of  the  pledgor  and 
pledgee  of  negotiable  instruments  after  default. — The  same 
rights  and  remedies  that  the  law  accords  to  the  pledgee  of  cor- 
poreal property  after  default  do  not  in  every  particular  obtain 
in  case  the  pledged  property  consists  of  negotiable  instruments 
or  choses  in  action.  The  difference  in  the  rights  of  the  pledgee 
in  ease  the  pledged  property  is  corporeal  or  consists  of  negoti- 
able instruments  grows  out  of  the  difference  in  the  nature  and 
kind  of  property  pledged.  Corporeal  property  is  presumed  al- 
ways to  have  a  market  value  which  represents  the  true  value  of 
the  property,  while  negotiable  instruments  are  not  presumed  to 
have  a  value  upon  the  market  before  they  are  due,  so  the  selling 
of  them  at  public  or  private  sale  necessarily  would  work  an  in- 
justice to  the  pledgor.  The  rule,  however,  is  different  where 
the  pledged  property  consists  of  stocks  and  bonds  of  corpora- 
tions. These  may  be  sold  at  public  auction  after  demand  of 
payment  and  due  notice  of  sale,  the  same  as  corporeal  property, 
because  that  is  the  usual  method  of  turning  such  securities  into 
money.  But  the  rule  when  the  property  consists  of  negotiable 
instruments,  like  promissory  notes  or  choses  in  action,  differs 
from  this,  for  the  reason  that  it  is  not  the  "usual  method"  of 
turning  such  securities  into  money.  A  sale,  however,  at  public 
auction  of  the  securities  in  case  of  default  may  be  stipulated 
by  an  agreement  between  the  parties,  and  in  such  case  be  legally 
made,  but  where  there  is  no  such  agreement  the  rule  is  as  we 

36  Jerome  v.  McCarter,  94  U.  S.  211;  West  v.  Bank  of  Rutland,  19 

734.  Vt.   403;    Midgeley  v.   Slocum,   32 

STPindley   v.   Hosmer,   2   Conn.  How.  Pr.  (N.  Y.)  423;   Steeper  v. 

350;  Walker  v.  Baxter,  26  Vt.  710;  McKee,  86  Pa.  St.  188;  Richardson 

Borough's  Estate,  75  Pa.  St.  460;  v.  Wyman,  4  Gray,  553. 
Van  Matter  v.  Ely,  12  N.  J.  Eq. 


298  PLEDGE  OK  PAWN.  [§    313.- 

have  stated.  In  Wheeler  v.  Newbould^^  it  was  held  "that  the 
pledge  of  commercial  paper  as  security  for  a  loan  of  money  does 
not,  in  the  absence  of  a  special  power  for  that  purpose,  authorize- 
the  pledgee  upon  the  non-payment  of  the  debt,  and  upon  notice 
to  the  pledgor,  to  sell  the  securities  pledged  either  at  public  or 
private  sale,  but  he  is  bound  to  hold  and  collect  the  same  as. 
they  become  due,  and  apply  the  money  to  the  payment  of  the 
loan."  The  court  say  further :  "When  the  subject  of  the  pledge 
consists  of  goods  and  merchandise,  or  chattels  of  any  kind,  there 
is  no  other  way  in  which  they  can  be  applied  to  the  payment 
of  the  debt,  unless  they  are  first  converted  into  money,  which 
can  only  be  done  by  a  sale.  The  creditor  must  resort  to  this 
process  because  there  is  no  other.  Goods  and  merchandise,  and 
personal  chattels  generally,  are  constantly  bought  and  sold  in 
the  market,  and  the  means  to  test  their  proximate  value  is  al- 
ways at  hand.  Their  value  at  the  place  where  they  are  offered 
is  their  value  everywhere  else;  because  it  depends  upon  their 
intrinsic  worth,  and  not  upon  extraneous  circumstances.  When 
the  creditor,  therefore,  offers  this  kind  of  property  for  sale  to 
satisfy  his  debt,  he  does  the  debtor  no  injustice  if  the  sale  is 
public,  properly  conducted  and  upon  due  notice.  But  where 
choses  in  action  for  the  payment  of  money,  notes,  bills,  bonds 
and  mortgages  are  the  subject  of  the  pledge,  the  case  is  widely 
different.  This  species  of  property  has  no  intrinsic  value  of 
which  one  person  may  judge  as  well  as  another.  They  are  the 
written  evidences  of  debts  due  or  to  become  due  from  others, 
and  their  value  depends  exclusively  upon  the  solvency  and  abil- 
ity of  the  debtor  to  pay  them  at  maturity.  They  are  not  mer- 
chandise in  the  usual  sense  of  the  word;  and  although  they  are 
sometimes  the  subject  of  sale,  the  practice  is  of  recent  origin, 
and  evidence  of  the  abuses  rather  than  the  legitimate  uses  of 
credit.  A  creditor  holding  such  property  in  trust  for  the  use 
of  his  debtor,  and  offering  it  for  sale  in  satisfaction  of  his  debt, 
can  hardly  fail  to  sacrifice  it;  for  unless  the  solvency  and  cir- 
cumstances of  the  makers  of  the  note  are  well  known  and  placed 
beyond  doubt,  few  will  purchase,  and  those  only  for  the  pur- 
pose of  speculation  and  at  ruinously  low  prices.  Unless  the 
stipulations  of  the  contract  are  expressly  to  that  effect,  the  law 
will  not  require  the  debtor  to  submit  his  property  to  an  ordeal 

32  16  N.  Y.  392. 


§    313.]  RIGHTS    AND    OBLIGATIONS    AFTER    DEFAULT.  299 

which  must  be,  in  a  great  measure,  destructive  of  its  value.  It 
will  rather  presume  that  it  was  the  intention  of  the  parties  to 
the  contract  that  the  creditor  should,  if  he  resorted  to  the 
pledge  in  place  of  the  personal  liability  of  the  debtor,  accept  the 
money  upon  the  hypothecated  securities  as  it  became  due  and 
payable,  and  apply  it  to  the  satisfaction  of  his  debt.  This  is  the 
fair  import  of  the  contract ;  for  it  is  not  reasonable  to  infer  an 
intention  to  subject  to  the  hazards  of  a  sale  a  species  of  property 
which  is  not  usually  the  subject  of  a  sale,  more  especially  when 
that  property  furnishes  itself  a  means  of  reimbursing  the  credi- 
tor without  loss,  or  the  hazard  of  loss,  to  the  debtor.  The  ac- 
ceptance of  the  pledge  does  not  suspend  the  creditor's  remedy 
against  the  debtor  a  moment  after  the  debt  falls  due.  But  if 
he  resorts  to  the  hypothecated  securities,  consisting  of  the  writ- 
ten obligations  of  others  for  the  payment  of  money,  he  must  ac- 
cept the  money  upon  them  as  they  become  due,  in  place  of  selling 
and  perhaps  sacrificing  them  at  a  sale.  This  is  just  and  right 
both  to  debtor  and  creditor,  and  the  law  seeks  to  accomplish 
nothing  less." 

In  Joliet  Iron  Co.  v.  Sciota,  etc.,  Co.^^  the  court  say:  ''The 
pledge  of  commercial  paper  as  collateral  security  for  the  pay- 
ment of  a  debt  does  not,  in  the  absence  of  a  special  power  for 

39  82  111.549;  Union  Trust  Co.  v.  Parwell  v.  National  Bank,  90  N. 
Rigdon,  93  111.  458.  "The  law  is  Y.  483.  "The  pledging  of  promis- 
well  settled,  where  there  is  no  sory  notes  embraces  power  to  col- 
agreement  otherwise,  the  pledgee  lect."  In  Hanna  v.  Holton,  78  Pa., 
in  possession  takes  only  a  lien  on  St.  334:  "By  an  assignment  of  col- 
the  property  as  a  security,  and  is  lateral  security  a  privity  in  con- 
bound  to  keep  the  pledge  and  not  tract  is  established  which  invests 
use  it  to  its  detriment,  and  to  re-  the  assignee  with  the  ownership 
deliver  it  on  payment  of  the  debt,  of  the  collateral  for  the  purpose 
His  character  is  that  of  a  trustee  of  dominion  over  the  debt  as- 
for  the  pledgor  to  return  the  prop-  signed.  He  alone  is  empowered 
erty  if  redeemed,  and,  if  not  re-  to  receive  the  money  to  be  paid 
deemed,  then  first  to  pay  the  debt,  upon  it  and  to  control  it  in  order 
and  second  to  pay  over  the  sur-  to  protect  his  rights."  The  inva- 
plus,  and  he  cannot  so  deal  with  lidity  of  sale  of  commercial  pa- 
the  trust  property  as  to  de-  per  at  public  sale  is  discussed  in 
stroy  or  even  impair  its  value."  Moses'  Ex'r  v.  Grainger,  106  Tenn. 
Fletcher  v.  Dickinson,  7  Allen,  23;  7,  53  L.  R.  A.  857.  In  the  note  to 
Nelson  v.  Edwards,  40  Barb.  279;  this  case  in  53  L.  R.  A.  857,  a  full 
Nelson  v.  Wellington,  5  Bosw.  discussion  is  had  and  cases  cited. 
178;  Jenness  v.  Bean,  10  N.  H.  See,  also,  ante,  §  276.  See  notes; 
266;    Austin  v.   Curtis,  31  Vt.  72;  4  L.  R.  A.  587. 


300  PLEDGE  OR  PAWN.  [§    315. 

that  purpose,  authorize  the  parties  to  whom  such  paper  is  so 
pledged  to  sell  the  securities  so  pledged  upon  default  of  pay- 
ment either  at  public  or  private  sale.  He  is  bound  to  hold  and 
collect  the  same  as  it  becomes  due  and  apply  the  net  proceeds 
to  the  payment  of  the  debt  so  secured."  And  where  a  sale  has 
been  authorized  upon  default  of  the  pledgor  by  the  agreement 
of  the  parties,  the  courts  have  construed  such  an  agreement 
with  very  great  strictness,  holding  that  the  power  conferred  is 
in  derogation  of  common-law  duties  and  takes  the  place  of  wise 
and  equitable  safeguards  which  are  interposed  for  the  protec- 
tion of  the  pledgor,  and  relieves  the  pledgee  from  such  duties 
imposed  upon  him,  and  that  these  safeguards  and  duties  are  in- 
tended to  prevent  fraud  and  a  breach  of  trust  imposed.  The 
authorities,  however,  are  not  entirely  harmonious  upon  this  sub- 
ject. In  some  of  the  states  it  has  been  held  that  negotiable 
paper  may  be  sold  the  same  as  corporeal  property. *°  In  other 
respects  the  rights  and  remedies  of  the  pledgee  are  similar  to 
those  where  the  property  pledged  is  corporeal.  The  pledgee 
may  bring  an  action  upon  the  debt  secured,  or  may  resort  to  the 
pledged  property;  and  if  he  brings  an  action  upon  the  debt,  he 
need  not,  during  the  pendency  of  the  action,  surrender  the  se- 
curity, but  may  hold  the  property  pledged.*^  Nor  will  the 
judgment,  if  one  is  obtained,  destroy  the  right  of  the  pledgee  to 
hold  possession  of  the  pledged  property.  Nothing  will  deprive 
him  of  his  right  to  possession  except  payment  of  the  debt. 

§  314.  The  English  rule. — The  English  courts  generally  fol- 
low the  rule  that  the  sale  of  negotiable  instruments  and  choses  in 
action,  after  failure  to  pay  the  pledged  debt  may  be  made  by 
making  demand  and  giving  notice  of  the  time  and  place  of  the 
sale,  the  same  as  though  the  property  were  corporeal  property.*- 

§  315.  Recourse  to  the  pledged  security. — The  pledgee,  where 
the  property  pledged  is  negotiable  instruments  or  choses  in 
action,  may  have  recourse  to  the  pledged  property  in  case  of  de- 

40Donohoe    v.    Gamble,    38    Cal.  *i  Elder  v.  Rouse,  15  Wend.  218; 

340;    Huyler  v.  Dahoney,  48  Tex.  Munger  v.  Albany  City  Nat.  Bank, 

234.     For  compilation  and  discus-  85   N.   Y.   580;    Whitwell   v.   Brig- 

sion   of  authorities,   see   National  ham,  19  Pick.  117. 

Bank  of  111.  v.  Baker,  4  L.  R.  A.  42  France  v.  Clark,  L.  R.  22  Ch. 

586,    and    notes;     also    Golden    v.  Div.  830;  52  L.  J.  Ch.  (N.  S.)  263; 

Mechanics'  Nat.  Bank,  43  L.  R.  A.  48    L.    T.    (N.    S.)    185;    Potter   v. 

737,  and  the  note.  Thompson,  10  R.  I.  1. 


§    316.]  RIGHTS   AND    OBLIGATIONS   APTER    DEFAULT.  301 

fault  of  the  pledgor;  but  his  procedure,  as  we  have  seen,  must 
necessarily  differ  from  the  procedure  as  stated  where  the  prop- 
erty is  corporeal.  It  is  his  duty  to  hold  the  negotiable  paper 
or  chose  in  action  until  the  same  is  due  and  then  collect  it  and 
apply  it  upon  the  pledged  indebtedness.  He  may  collect  the 
negotiable  paper  either  with  or  without  suit,  as  the  case  re- 
quires. After  collecting  sufficient  upon  the  pledged  securities 
to  satisfy  the  indebtedness  and  the  cost  of  collection,  it  is  his 
duty  to  account  to  the  pledgor  for  any  surplus,  either  in  money 
or  securities,  remaining  in  his  hands  after  the  pledged  indebt- 
edness is  thus  satisfied.  The  pledgee  thus  holding  negotiable  in- 
struments as  securities  stands  in  the  position  of  a  trustee  of  the 
property;  he  is  bound  to  exercise  ordinary  care  in  looking  after 
the  pledge.  It  is  not  only  his  right  but  it  is  his  duty  to  collect 
the  amount  due  upon  the  securities. 

The  supreme  court  of  Illinois,  in  the  case  of  Joliet  Iron  Co. 
V.  Sciota  Brick  Co.^^  say:  "A  person  holding  property  or  se- 
curity in  pledge  occupies  the  relation  of  trustee  for  the  owner, 
and  as  such,  in  the  absence  of  special  power  to  do  otherwise,  is 
bound  to  proceed  as  a  prudent  owner  would."  This  sums  up 
the  duty  of  the  pledgee  holding  the  pledged  negotiable  instru- 
ments. If  he  fails  to  exercise  that  diligence  and  care  which  a 
prudent  owner  under  just  such  circumstances  would  exercise, 
he  becomes  liable  for  any  injury  that  may  result  because  of  such 
negligence  to  the  pledgor  or  his  assigns. 

§  316.  The  pledgee's  diligence  in  collecting  the  securities. — 
The  pledgee  is  a  bailee  of  the  securities  for  the  benefit  of  both 
parties.  He  must  therefore  exercise  ordinary  diligence  in  per- 
forming every  duty  incumbent  upon  him.  What  would  the  or- 
dinarily prudent  owner  of  just  such  negotiable  instruments  do 
under  just  such  circumstances?  The  answer  to  this  question 
defines  the  duties  of  such  a  pledgee  and  fixes  as  well  his  liabil- 
ity.    The  court  in  Hazard  v.  Wells'^*  say:  "A  creditor  holding 

«  82  111.  584,  25  Am.  Rep.  341.  Ind.  425.     "The  parties  may  bind 

44  2  Abb.   N.   Cas.    (N.  Y.)    440.  themselves,  however,  by  an  agree- 

"Where   the   pledgee   knows   that  ment   as   to   the   diligence    to   be 

the  maker  of  a  pledged  note  is  in  used."   Lee  v.  Baldwin,  10  Ga.  208; 

embarrassed      circumstances      he  Muirhead  v.  Kilpatrick,  21  Pa.  St. 

must   use   greater   diligence    than  237;    Girard  F.   &   M.  Ins.    Co.   v. 

if  the   maker   were   known   to  be  Muir,    46    Pa.    St.    504;    Miller    v. 

solvent."      Slevin    v.    Morrow,    4  Gettysburg  Bank,  8  Watts   (Pa.), 


302  PLEDGE  OR  PAWN.  [§    317. 

negotiable  paper  as  collateral  security  is  required  to  use  a  dif- 
ferent kind  of  diligence  from  that  required  of  one  holding  mer- 
chandise or  other  corporeal  property,  and  yet  the  diligence  in 
each  case  is  only  such  as  is  appropriate  to  the  nature  of  the  prop- 
erty. If  the  property  be  precious  stones,  safe  keeping  is  all 
that  is  required.  If  it  be  grain,  it  must  be  properly  stored  and 
protected  from  all  injury.  The  diligence  required  of  the  holder 
of  promissory  notes,  or  other  securities  for  the  payment  of 
money,  has  reference  to  the  danger  that  the  parties  liable  on 
them  may  become  insolvent  and  unable  to  pay.  A  prudent  busi- 
ness man  will  collect  such  obligations  when  they  are  due,  or  will 
endeavor  to  enforce  them  by  suit.  If,  therefore,  a  creditor  neg- 
lects to  enforce  the  collection  of  such  securities  held  in  pledge, 
and  delays  till  the  parties  liable  have  become  insolvent,  he  is  as 
much  guilty  of  negligence  as  if  he  had  suffered  grain  held  in 
pledge  to  be  destroyed  by  dampness  or  heat  for  lack  of  proper 
storage."  The  degree  of  diligence,  however,  that  is  required  to 
be  exercised  by  the  pledgee  may  be  modified  by  an  agreement 
between  the  parties.  As,  for  example,  it  has  been  held  that 
where  the  parties  make  an  express  agreement  as  to  the  diligence 
to  be  used,  they  will  be  bound  by  that  and  not  by  the  general 
law.*^  But,  whatever  the  agreement  may  be,  or  whatever  the 
condition  of  the  ease,  the  law  requires  that  the  pledgee  shall  act 
in  the  utmost  good  faith.  This  is  a  rule  that  obtains  through- 
out the  law  of  bailment,  and  applies  to  this  class  of  cases. 

§  317.  Pledgee  may  recover  in  an  action  on  the  negotiable 
securities. — Negotiable  paper  having  been  pledged  and  placed 
in  the  hands  of  the  pledgee,  the  pledgee  may  recover,  in  an  ac- 
tion upon  the  security,  a  judgment  against  the  maker  and  in- 
dorsers  of  the  paper  when  the  same  becomes  due,  and  he  need 
not  wait  until  the  pledgee's  indebtedness  is  due,  but  may  collect 
by  a  suit  at  law  or  otherwise  upon  the  collaterals  and  hold  and 
apply  the  amount  collected  on  the  pledge.  In  such  action  he 
will  be  entitled  to  a  judgment  for  the  full  amount  of  the  col- 
lateral even  though  it  exceeds  the  amount  of  the  debt  secured. 
If,  however,  there  are  equities  in  favor  of  the  maker  against 
the  pledgor,  the  pledgee  could  not  recover  an  amount  more 
than  sufficient  to  meet  the  pledged  indebtedness,  the  theory  of 

192;  Reeves  V.  Plough,  41  Ind.  209 ;  45  Lee  v.  Baldwin,   10   Ga.   208; 

Jones  V.  Hicks,  52  Miss.  682.     See      Bar  v.  Cain,  32  Ind.  416. 
editorial  notes,  68  L.  R.  A.  482. 


§    317.]  RIGPITS   AND    OBLIGATIONS   APTER    DEFAULT.  303 

the  law  being  that  the  maker  is  liable  for  the  full  amount  of  the 
face  value  of  his  paper,  and  the  pledge  can  in  no  way  either 
benefit  or  injure  him.*^  And  so  where  the  pledgee  holds  ac- 
commodation paper  as  security,  he  having  obtained  the  pledge 
in  good  faith  for  a  legal  and  subsisting  debt,  the  presumption 
attaches  that  he  gave  full  value  for  it,  and  he  can  recover  the 
full  amount  due  upon  the  paper  to  meet  the  amount  of  the 
pledged  indebtedness,  and  in  such  ease  the  pledgor  cannot  en- 
join the  collection  of  such  paper  until  the  creditor  holding  the 
same  shall  first  exhaust  other  securities  for  the  same  debt  placed 
with  him  by  his  debtor.  This  has  been  held  to  be  the  rule  of 
law  even  though  the  making  of  such  paper  was  procured  by 
fraud.  The  presumption  that  the  pledgee  paid  full  value  for 
the  paper  may,  however,  be  overcome  by  proof,  and  if  it  be 
shown  that  the  paper  is  accommodation  paper,  and  that  the 
pledged  indebtedness  can  be  satisfied  by  a  less  sum  than  the 
amount  due,  then  judgment  will  only  be  allowed  for  an  amount 
necessary  to  satisfy  the  pledged  debt.  And  in  such  case  the 
principle  of  equity,  that  "where  a  party  has  a  lien  upon  two 
funds,  out  of  either  of  which  his  debt  can  be  paid,  and  another 
has  a  lien  on  one  only  of  the  funds  for  his  debt,  the  latter  has 
a  right  to  compel  the  former  to  resort  to  the  other  fund  in  the 
first  instance  for  the  satisfaction  of  his  debt,"  does  not  apply; 
this  is  applied  only  to  sureties.*'^ 

46  Wilkinson  v.  Jeffreys,  30  Ga.  ments  at  least  the  amount  of  the 

153;     Tarbell   .v.    Stuyvesant,    26  original     indebtedness     and     the 

Vt.    513;    Holeman   v.    Hobson,    8  costs  in  all  the  suits.     If  he  col- 

Humph.    (Tenn.)    127;    Parish    v.  lects   anything  on  the   collaterals 


Stone,  14  Pick.  (Mass.)  198 
Fisher  v.  Fisher,  98  Mass.  303 
Pelding  v.  Manley,  21  Vt.  550 
Jackson  v.  Bank,  42  N.  J.  L.  177 


after  the  indebtedness  which  they 
were  assigned  to  secure  is  paid, 
he  receives  it,  of  course,  for  the 
benefit  of  the  assignor."     Bank  v. 


Duncomb  v.  N.  Y.  Ry.  Co.,  84  N.  Roberts,    45    Wis.    373;    Tooke    v. 

Y.   190;    Greenwall  v.  Hayden,   78  Newman,  75  111.  215. 

Ky.    332;     Manufacturing    Co.    v.  4^  Fisher  et  al.  v.  Fisher  et  al , 

Falvey,  20  Wis.  211.    "But  if  notes  98    Mass.    303.      "If    a    negotiable 

are  assigned  as  collateral  security  promissory  note,  which  is  without 

for  a  debt,  the  holder  may  at  the  consideration  as  between  the  orig- 

same    time,    unless    there    is    an  inal   parties   thereto,   is  delivered 

agreement  to  the  contrary,  bring  without   consideration   to  another 

different  suits,  one  on  the  original  person,  who  pledges  it,  before  its 

debt  and  others  on  the  collaterals,  maturity,    as    collateral    security 

and   prosecute   them   all   to   judg-  for    a    debt    of    his    own    of    less 

ment,    and    collect    on    the    judg-  amount  than  the  face  of  the  note, 


304  PLEDGE   OR  PAWN.  [§    317. 

An  interesting  case  where  this  subject  is  very  thoroughly  dis- 
cussed by  counsel  and  court  is  Farwell  v.  Importers',  etc.  Bank^^ 
Plaintiffs  made  their  promissory  note  to  their  own  order  which 
they  indorsed  to  brokers  to  sell.  The  brokers,  without  the  plain- 
tiffs'  knowledge  or  consent,  delivered  said  note,  with  others  be- 
longing to  themselves,  to  defendant,  as  security  for  a  call  loan. 
Before  the  maturity  of  said  note  plaintiffs  notified  defendant 
of  their  rights  in  respect  to  it;  they  paid  the  note  when  due. 
At  that  time  defendant  had  not  received  enough  from  the  other 
collaterals  to  pay  the  loan,  but  thereafter  did  receive  more  than 
enough  for  that  purpose.  In  an  action  for  an  accounting  to 
determine  defendant's  rights  to  the  proceeds  of  said  note  and 
to  compel  payment  of  any  portion  thereof  not  necessary  to 
satisfy  its  lien  thereon,  held,  that  having  received  the  note  from 
the  ostensible  owners  in  ignorance  of  the  plaintiffs'  rights,  de- 
fendant could  hold  the  same  as  security;  yet  the  right  of  prop- 
erty did  not  pass,  but  remained  in  plaintiffs,  subject  to  de- 
fendant 's  lien ;  and  while  the  latter,  as  pledgee,  had  the  right  to 
collect  the  note  when  due,  as  the  loan  had  not  been  paid,  the 
money  collected  remained  as  a  substitute  for  the  note  and  sub- 
ject to  plaintiffs'  equities,  the  same  as  though  the  note  itself  had 
remained  uncollected;  that  after  the  notice,  plaintiffs  stood  as 
mere  sureties  for  the  loan,  to  the  extent  of  their  note,  and  be- 
fore resort  was  had  thereto  could  compel  the  application  of  the 
proceeds  of  the  securities  belonging  to  the  brokers,  and  when 
sufficient  was  received  therefrom  to  satisfy  defendant's  claim, 
the  proceeds  of  the  note  were  released  from  the  lien,  and  plain- 
tiffs were  entitled  to  recover  the  same. 

In  Morris  Canal  &  Banking  Co.  v.  Lewis  "  the  court  say:  "It 
was  held  by  this  court  in  the  case  of  Morris  Canal  &  Banking 
Co.  V.  Fisher,  1  Stock.  667,  that  the  coupon  bonds  of  an  incor- 
porated company  are  transferable  by  delivery,  so  that  a  hona 
fide  holder  has  a  good  title  to  them.  It  rests  upon  the  faith 
that  such  bonds  are  expressly  designed  to  be  thus  circulated, 
and  to  be  sold  in  the  stock  market  like  public  securities,  and  that 
they  are  universally  so  used.  When  bonds  of  such  character, 
having  several  years  to  run  before  they  become  due,  are  de- 

the  pledgees,  if  they  take  it  with-  due  to  them  upon  the  debt  which 

out  notice,  are  to  be  deemed  hold-  it  was  pledged  to  secure." 

ers  fcr  value,   and  may  maintain  48  90  N.  Y.  483. 

an  action  thereon  for  the  amount  49  12  N.  J.  Ch.  323. 


§    318.]  RIGHTS   AND    OBLIGATIONS   APTER   DEFAULT.  305 

posited  as  collateral  security  for  the  payment  of  promissory 
notes  soon  to  mature,  the  fair  presumption  is  that  they  were 
designed  to  be  held  as  a  pledge,  and  were  expected  to  be  sold, 
after  demand  and  due  notice,  like  goods,  chattels,  stocks  and 
public  securities,  in  case  the  debt  for  which  they  were  pledged 
should  not  be  punctually  paid.  Such  a  deposit  differs  entirely 
from  a  deposit  of  ordinary  bonds,  mortgages,  promissory  notes, 
and  like  choses  in  action,  which,  in  the  absence  of  an  agree- 
ment to  that  effect,  the  creditor  cannot  expose  to  sale,  because 
they  have  no  market  value,  and  it  cannot  be  presumed  it  was 
the  intention  of  the  parties  thus  to  deal  with  them."  The  law 
throws  the  same  safeguards  around  such  a  sale  on  the  foreclosure 
of  the  pledge  that  usually  protect  the  pledgor  when  the  pledged 
property  is  corporeal.  The  sale  must  be  fair  and  open,  and 
every  reasonable  effort  used  to  obtain  the  best  price  for  the  prop- 
erty sold,  and  no  more  property  than  is  necessary  to  discharge 
the  pledge  will  be  allowed  to  be  sold.^°  And  it  has  been  held 
that  when  several  different  lots  of  stock  have  been  given  to  se- 
cure the  debt,  they  should  be  sold  separately.^^ 

§  318.  Compromise. — The  pledgee  of  negotiable  paper  or 
choses  in  action  has  no  right  to  take  a  less  amount  than  is  due 
upon  the  pledged  security  from  the  maker,  or  from  those  liable 
upon  the  security;  and  it  is  a  general  rule  that  if  he  does  so  he 
becomes  liable  for  the  difference  between  the  amount  received 
and  the  face  value  of  the  security,  provided  there  is  no  contract 
allowing  such  a  compromised^  There  are  cases  where  such  a 
compromise  has  been  upheld,  and  so  it  may  be  said  that  there 
are  exceptions  to  the  rule;  as  where  the  maker  of  the  collateral 
is  insolvent  and  nothing  can  be  collected  upon  the  security  by 
process  of  law,  and  the  compromise  would  be  for  the  best  in- 
terest of  both  parties.  It  was  so  held  in  Exeter  Bank  v.  Gor- 
don.^^  The  court  say:  "It  is  without  doubt  a  well  settled, 
general  rule  that  the  pledgee  has  no  right  in  such  a  case  to  com- 
promise for  a  less  amount  than  the  sum  due  on  the  face  of  the 
security.     There  are,  however,  exceptions  to  this  rule;  but  ad- 

BONewsome  v.  Davis,  133  Mass.  497;    Union  Trust  Co.  v.  Rigdon, 

343.  93  111.  458. 

siMahoney  v.  Caperton,  15  Cal.  sag    N.    H.    66;    Story    on    Bail- 

313.  ments,  214;   Bowman  v.  Wood,  15 

52  Zimpleman  v.   Veeder,   98  111.  Mass.    534;    Garlick  v.   James,    12 

613;    Wood   v.    Mathews,    73    Mo.  John.  146. 

20 


306  PLEDGE  OR  PAWN.  [§    318. 

initting  for  the  present  that  the  general  rule  is  applicable  to 
this  case,  the  question  will  then  be,  has  the  wrongful  act  made 
the  bank  accountable  for  the  whole  sum  due  on  the  note,  or 
only  for  the  value  of  the  note?  There  seems  to  be  no  reason  to 
suppose  that  the  compromise  was  not,  on  the  whole,  highly  ad- 
vantageous to  the  Gordons  and  the  bank;  and  the  complaint  of 
this  defendant  is  not  that  anything  in  fact  is  lost  by  it,  but  that 
it  was  made  without  authority.  If  the  bank  had  wrongfully 
taken  the  note  and  converted  it  to  their  own  use,  they  would  have 
been  answerable  only  for  the  value.  ...  If,  then,  we  fol- 
low that  analogy  in  this  case,  we  must  hold  that  the  bank  is 
liable  only  for  what  it  received,  if  the  compromise  was  on  the 
whole  advantageous  to  all  concerned." 

A  power  of  sale  after  default  will  not  authorize  the  pledgee 
to  sell  the  security  to  the  maker  for  a  less  sum  than  the  face 
value.  Such  a  sale  would  not  be  considered  as  authorized,  but 
rather  as  a  compromise  and  so  unauthorized.  °*  The  pledgee  is 
also  protected  in  his  holding  of  the  security,  and  he  cannot  be 
compelled,  even  by  the  pledgor,  to  accept  a  compromise  of  the 
security,^^  or  to  accept  any  other  paper  or  security  in  the  place 
of  it.  The  pledgee  cannot  be  compelled  to  accept  anything  but 
money  in  payment  or  satisfaction  of  the  pledged  indebtedness, 
in  the  absence  of  a  contract  requiring  him  to  do  so ;  and  an  offer 
to  turn  over  to  him  property,  no  matter  if  it  be  of  greater  value 

54  Zimpleman  v.  Veeder,  98  111.  55  in  Union  Trust  Co.  v.  Rigdon, 
613.  But  a  pledgee  of  a  promis-  93  111.  458,  it  was  held  "that  the 
scry  note,  with  a  power  of  sale  in  surrender  by  a  pledgee  of  promis- 
case  of  default,  does  not  author-  sory  notes  as  collateral  security 
ize  the  pledgee  to  compromise  who  has  an  express  written  au- 
with  the  maker  of  the  note  and  thority  to  sell  at  public  auction  or 
take  less  than  was  due  thereon,  private  sale  for  a  sum  less  than 
where  the  note  v/as  well  secured  is  due  thereon,  but  which  is 
and  absolutely  worth  its  face  enough  to  pay  the  principal  debt, 
value.  And  a  sale  by  the  pledgee  is  not  a  sale  within  the  meaning 
of  a  negotiable  promissory  note  of  the  power  conferred,  but  is  a 
under  a  contract  conferring  power  compromise  which  renders  the 
to  sell  for  an  amount  much  less  pledgee  liable  in  an  action  on  the 
than  the  face  value  of  the  note,  case  to  the  pledgor  for  the  in- 
without  notice  to  the  pledgor,  jury  thereby  sustained;  and  if  at 
will  not  be  regarded  as  such  a  the  same  time  he  sells  other  col- 
sale  as  the  law  requires,  but  laterals  to  the  same  debtor,  the 
rather  as  a  compromise  between  whole  transaction  being  a  tort, 
the  pledgee  and  the  maker  of  the  the  pledgor  may  recover  for  the 
note.  whole." 


§    319.]  EIGHTS   AND    OBLIGATIONS   AFTER    DEFAULT.  307 

than  the  amount  of  the  debt,  cannot  avail  the  pledgor  anything, 
nor  is  the  pledgee  bound,  upon  such  an  offer  being  made,  to 
notify  the  debtor  upon  the  collateral.^®  On  the  other  hand, 
should  the  pledgee  accept  property  as  payment  of  the  collateral, 
he  would  be  liable  to  account  to  the  pledgor  for  the  full  face 
value  of  the  pledged  security.  If,  however,  the  debtor  consent 
to  a  compromise  that  has  been  made  by  the  pledgee  with  those 
liable  upon  the  collateral,  then  it  would  be  binding,  and  this 
consent  may  be  either  express,  or  implied  by  the  acts  of  the 
bailor. 

In  case  of  an  illegal  compromise  and  surrender  of  the  securi- 
ties, the  pledgor  has  the  option  of  commencing  either  of  two 
actions:  (1)  he  may  sue  the  maker  or  those  liable  upon  the  col- 
lateral and  have  judgment  for  an  amount  equal  to  the  differ- 
ence between  the  amount  due  upon  the  pledged  indebtedness 
and  the  face  value  of  the  security;  or  (2)  he  may  sue  the  pledgee 
and  have  judgment  for  a  like  amount. 

Section  III. 

§  319.  Rights  and  liabilities  of  pledgee  of  stocks  and  bonds 
of  corporations  after  default. — The  rights  and  liabilities  of 
a  pledgee  of  stocks  and  bonds  of  corporations  after  default 
in  not  paying  the  pledged  indebtedness  are  not  dissimilar  to 
his  rights  and  liabilities  when  the  pledged  property  is  corporeal. 
He  may  bring  his  action  and  recover  a  judgment  for  the  in- 
debtedness and  hold  and  avail  himself  of  the  security  the  same 
as  in  the  case  of  corporeal  property,  or  he  may  foreclose  the 
pledge  by  giving  the  usual  notice  of  sale  at  common  law  after 
demand  of  payment  of  the  debt  secured,  the  law  following  out 
the  theory  already  stated,  namely,  that  this  kind  of  property 
usually  has  a  market  value,  which  can  be  realized  by  placing  it 
upon  sale.  Stocks  and  bonds  are  bought  and  sold  in  the  market 
without  reference  to  their  maturity,  and  so  such  pledges  may  be 
foreclosed  by  public  sale  after  demand  of  payment  and  due  no- 
tice of  the  sale.^^ 

56  Rives  V.  M'Losky,  5  Stew.  &  Nat.  Bank  v.  Thompson,  133  Mass. 
P.  (Ala.)  330;  Rhinlander  v.  Bar-  182;  Toronto,  etc.  Co.  v.  Central, 
row,  17  John.  (N.  Y.)  538.  etc.  R.  Co.,  10  Ont.  L.  Rep.  347,  4 

57  Ind.  &  111.  Cent.  R.  Co.  v.  Me-  Am.  &  Eng.  Ann.  Cases,  1163,  and 
Kennan,   24    Ind.    62;    Merchants'  cases  collected  in  note. 


308  PLEDGE  OR  PAWN.  [§    322. 

§  320.  Stocks  held  by  brokers  purchased  on  margins. — 
There  is  an  immense  business  carried  on  in  this  country  through 
brokers,  who,  for  a  certain  agreed  amount  advanced  to  them 
upon  the  price  of  stocks  purchased,  called  margins,  advance  the 
balance  of  the  amount  necessary  to  make  the  purchase  for  the 
customer,  the  broker  holding  the  stock  and  the  margin  as  his 
security  for  the  purchase  price  advanced  by  him,  having  at 
all  times  the  right  to  demand  and  have  paid  to  him  sufficient 
further  amounts,  or  margins,  to  make  the  stocks  sufficient  se- 
curity for  the  amount  due  from  the  customer  upon  them.  Such 
transactions  are  embraced  in  the  law  of  pledge ;  the  broker  being 
the  pledgee,  the  customer  for  whom  he  holds  the  stocks  upon 
margins  the  pledgor,  and  the  amount  remaining  due  upon  the 
stocks  for  the  purchase  price  thereof,  the  pledged  indebted- 
ness. It  must  be  admitted  that  the  course  of  business,  and  the 
rights  and  liabilities  of  the  parties,  somewhat  differ  in  these 
particular  transactions  from  that  of  the  ordinary  pledging  of 
property  as  security  for  the  payment  of  a  debt,  but  nevertheless 
the  questions  involved  must  be  settled  by  the  rules  of  law  applic- 
able to  pledgor  and  pledgee. 

§  321.  Custom,  usage  and  course  of  business. — The  rules  of 
law  fixing  the  rights  and  liabilities  in  this  kind  of  business  are 
the  result  of  the  business  customs  and  usages  which  have  been 
adopted  and  acquiesced  in  by  brokers  and  customers ;  the  known 
and  recognized  rules  and  regulations  of  boards  of  trade  and 
stock  exchanges,  the  agreements  of  the  parties  expressed  as  well 
as  implied  by  the  long-continued  and  well-understood  course  of 
business.  The  customer,  no  doubt,  has  the  right  to  redeem  the 
stock  by  paying  to  the  broker  the  amount  due  upon  it,  and  in 
such  case  the  broker  would  be  bound  to  deliver  to  him  the  cer- 
tificate of  the  stock  purchased,  and,  in  case  of  failing  or  refus- 
ing to  do  so,  would  be  subject  to  the  usual  liability  of  a  bailee 
in  such  cases;  and  this  right  to  redeem,  as  in  other  cases,  exists 
so  long  as  the  pledge  remains  unforeclosed. 

§  322.  Foreclosure  of  the  pledge  where  stocks  are  held  on 
margins. — The  foreclosure  of  the  pledge  in  such  cases  differs 
somewhat  from  the  foreclosure  of  the  ordinary  pledge  where  the 
property  is  corporeal,  or  where  it  is  stocks  and  bonds  of  corpo- 
rations, already  noticed.  Here  the  parties  are  largely  governed 
by  customs,  rules  and  regulations  that  have  become  known  and 
established,  and  have  been  recognized  and  agreed  to  at  the  time 


§    322.]  EIGHTS    AND    OBLIGATIONS    AFTER    DEFAULT.  309 

of  the  purchase,  and,  by  the  very  fact  of  the  purchase,  are  un- 
derstood between  the  parties  to  have  been  agreed  to.  The  mar- 
gins, as  we  have  seen,  have  been  paid  to  the  broker  from  time  to 
time  to  keep  his  security  good  for  the  amount  advanced.  These 
amounts  or  margins  must,  of  course,  be  reasonable,  but  are  fixed 
by  the  broker  and  must  be  paid  by  the  customer  after  reasonable 
notice.  There  is  no  fixed  time  when  the  whole  amount  due  for 
purchase  price  shall  become  due  and  payable ;  it  is  presumed  that 
at  some  time  the  stocks  are  to  be  paid  for,  and  that  time  may  be 
said  to  be  within  a  reasonable  time,  and  at  that  time  the  broker 
has  the  right  to  demand  that  the  business  be  closed.  Should  the 
customer  fail  upon  reasonable  notice  to  pay  the  margins  de- 
manded, or  fail  after  a  reasonable  time,  and  upon  demand  and 
reasonable  notice,  to  pay  the  amount  due  the  broker  for  ad- 
vances, in  either  case  the  broker  may  sell  the  stocks  in  the  market 
at  their  then  market  value  and  close  up  the  account,  accounting 
to  the  customer  for  the  amounts  received  upon  the  sale  and  for 
the  margins  which  have  been  paid,  if  he  can  do  so,  after  reserv- 
ing for  himself  the  full  amount  advanced  with  interest  and  com- 
missions. No  public  sale  is  required.  Custom  and  usage  and 
the  general  and  usual  course  of  trade  has  fixed  and  settled  this 
as  the  legal  foreclosure,  and  after  such  sale,  if  it  is  free  from 
fraud,  there  is  no  redemption.^^ 

58  In  Denton  v.  Jackson,  106  111.  gin  is  made  and  complied  with, 
433,  it  was  held:  "In  the  absence  and  afterwards  a  second  call  is 
of  any  contract  between  a  broker  made  which  is  not  complied  with, 
and  customer  with  regard  to  no-  and  the  broker  sells  the  stock 
tice  of  sale,  and  of  any  rule  of  the  without  notice,  the  sale  is  irregu- 
board  of  trade,  the  common  law  lar  and  constitutes  a  conversion, 
would  govern  regarding  reason-  In  Hanks  v.  Drake,  49  Barb.  186: 
able  notice  to  the  customer  to  The  notice  required  in  the  case  of 
make  his  margin  good  in  order  to  a  sale  of  pledged  stock  as  secur- 
justify  the  sale."  In  Graman  v.  ity  for  the  payment  of  money  ad- 
Smith,  81  N.  Y.  25:  Where  stocks  vanced  thereon  is  not  required  in 
are  held  by  a  broker  for  a  cus-  the  case  of  a  purchase  by  brokers 
tomer  on  a  margin,  it  is  a  part  of  as  agents  advancing  money  there- 
the  contract  that  if  the  stock  de-  for,  but  the  brokers  must  give  the 
predate  the  margin  shall  be  kept  customer  notice  that  his  margin 
good  on  demand,  and,  upon  failure  is  diminished  and  that  they  re- 
to  do  so,  the  stocks  may  be  sold  quire  a  further  margin,  and  a  rea- 
upon  reasonable  and  customary  no-  sonable  time  must  be  given  him 
tice;  but  where  the  stock  depreci-  in  which  to  comply  before  the 
ates  and  a  call  for  additional  mar-  stock  can  be   sold.     Worthington 


310  PI>BDaE  OR  PAWN.  [§   325. 

Section  IV. 

§  323.  The  rights  and  liabilities  of  the  pledgor  after  default. 

The  pledgor  has  a  right  at  any  time  before  foreclosure  of  the 
pledge  to  redeem  his  property  from  the  lien  thereof  by  paying 
the  debt  or  obligation,  or  the  amount  due  upon  the  pledge,  or,  in 
case  of  the  refusal  of  the  pledgee  to  accept  that  amount,  by  ten- 
dering to  him  the  amount  due.  But  if  the  pledgor  should  fail  to 
do  this,  and  by  reason  of  his  default  in  not  paying  the  debt  for 
which  the  property  was  pledged  when  due,  the  pledgee  should 
legally  foreclose  the  pledge  and  sell  the  property,  the  pledgor's 
rights  and  interests  in  the  pledged  property  would  be  gone,  and 
he  would  have  no  further  right  of  redemption.  But  in  order  to 
cut  off  the  pledgor's  right  to  redeem,  the  foreclosure  must  be 
legal  and  regular,  otherwise  the  pledgor  would  have  a  right  of 
action  as  for  conversion  of  the  property,  and  might,  even  after 
such  foreclosure,  tender  to  the  pledgee  the  amount  due  and  re- 
cover the  pledged  property. 

§  324.  The  pledgor  may  waive  irregularity. — The  pledgor 
may,  however,  by  express  or  implied  ratification  of  the  fore- 
closure sale,  or  otherwise,  waive  the  irregular  or  illegal  proced- 
ure of  the  pledgee.  As,  for  example,  where  the  pledgee  sold  the 
property  without  giving  the  proper  notice;  or  where  he  sold  it 
at  private  sale,  having  no  authority  to  do  so,  and  the  pledgor 
accepts,  after  such  irregularities,  the  money  received,  and  appro- 
priates it  to  his  own  use  after  l^nowing  all  the  facts;  or  where 
the  pledgor  stood  by  and  witnessed  the  illegal  or  irregular  dis- 
position of  the  property  on  foreclosure  of  the  pledge,  allowing 
bona  fide  purchasers  to  buy  the  property,  making  no  objection, 
in  such  cases  the  pledgor  woidd  be  estopped  from  taking  advan- 
tage of  the  irregular  or  illegal  proceeding. ^^ 

§  325.  Redemption  in  equity. — Equity  will  not,  except 

in  very  unusual  cases,  take  jurisdiction  and  decree  a  right  of 

V.  Tormey,  34  Md.  182.    The  New  sale,  it  will  be  wrongful  and  oper- 

York  court  of  appeals  has  held:  ate   as   a   conversion.      Gillett   v. 

The   relation   existing   between   a  Whiting,  120  N.  Y.  402;   Baker  v. 

customer  and  a  broker  with  refer-  Drake,     66    N.    Y.     518,     23    Am. 

ence  to  stocks  purchased  by  the  Rep.  80. 

broker  on  a  margin  for  the  cus-  og  Hamilton   v.    State    Bank,    22 

tomer     is     that    of    pledgor    and  Iowa,  306;   Galigher  v.  Jones,  129 

pledgee,    and   if   the   broker    sells  U.  S.  193.    And  a  sale  of  a  pledge 

the  stock  without  demanding  ad-  by  a   pledgee   cannot   be   avoided 

ditional  margin  or  giving  the  cus-  on    the    ground    that    no    demand 

tomer    reasonable    notice    of    the  was  made  on  the  pledgor  for  pay- 


§    326.]  RIGHTS   AND    OBLIGATIONS   AFTER    DEFAULT.  311 

redemption  in  this  class  of  cases,  for  the  reason  that  the  legal 
remedy  is  generally  adequate  and  gives  full  and  complete  relief. 
The  pledgor  may,  upon  satisfying  the  pledged  indebtedness,  or 
offering  to  do  so  by  legally  tendering  the  required  amount,  re- 
cover the  pledged  property  by  an  action  of  replevin  or  its  value 
in  an  action  of  trover  in  case  the  pledgee  should  refuse  to  de- 
liver the  property.  The  legal  title  to  the  property,  it  will  be  re- 
membered, is  always  in  the  pledgor ;  it  has  only  been  incumbered 
by  a  special  lien  or  right  of  possession,  which  is  satisfied  and  re- 
moved when  the  pledged  indebtedness  is  satisfied,  so  that  the 
pledgor  then  has  the  title  and  right  to  possession  unincumbered, 
and  the  law  will  give  him  the  property.  In  this  respect  a  pledge 
differs  from  a  mortgage.  By  the  mortgage,  the  property  mort- 
gaged is  conveyed  subject  to  a  defeasance  clause,  while  in  case 
of  a  pledge  the  title  remains  in  the  pledgor;  and  so,  even  where 
by  the  agreement  pledging  the  property  it  is  stipulated  that 
upon  failure  to  pay  the  indebtedness  upon  a  certain  due  day  the 
property  shall  become  the  property  of  the  pledgee  absolutely, 
this  agreement,  being  void,  will  not  affect  the  right  of  the 
pledgor  to  redeem  at  any  time  after  the  due  day  and  prior  to  a 
legal  foreclosure  of  the  pledge;  and  in  such  case  the  remedy  at 
law  is  adequate.®" 

§  326.  Equity  in  some  cases  will  take  jurisdiction. — If  the 
redemption  involves  a  long  and  difficult  accounting,  such  an  ac- 
counting as  belongs  to  the  jurisdiction  of  a  court  of  equity,  the 
equitable  remedy  might  be  invoked ;  or  if  some  special  reason  ex- 
isted, as  that  a  discovery  was  wanted.®^  So  in  case  certificates 
of  stock  have  been  transferred  to  the  pledgee  upon  the  books  of 
the  company,  the  pledged  property  thus  having  passed  to  the 
pledgee,  he  having  the  legal  title  and  refusing  to  reconvey,  a 

ment,    and    that   the   pledgee   did  was    open    to    the    public    at   the 

not  give  the  pledgor  any  notice  of  time  of  the  sale, 

the   time  and   place   of  sale,   and  so  Genet  v.   Rowland,    45   Barb, 

that  the  sale  was  not  at  a  public  (N.  Y.)  560;  Doak  v.  Bank,  6  Ired. 

auction,    where    the    pledgor    at-  (N.  C.)   309. 

tended  the  sale  and  did  not  ob-  ei  story  on  Eq.  Jur.  sec.  1032; 
ject  to  it,  but  made  a  bid,  and  Hasbrouck  v.  Vandervoort,  4 
after  the  sale  the  pledgor,  with  the  Sand.  (N.  Y.)  74;  Kemp  v.  West- 
pledgee  and  purchaser,  joined  in  brook,  1  Ves.  278;  White  Mt.  R. 
celebration  of  the  sale,  and  the  Co.  v.  Bay  State  Iron  Co.,  50  N. 
sale  was  held  in  a  room  which,  H.  57;  Durant  v.  Einstein,  35 
though  generally  open  only  to  How.  Pr.  (N.  Y.)  223;  Beatty  v. 
members   of  the   board   of  trade,  Silveston,  3  Nev.  228. 


312  PLEDGE  OR  PAWN.  [§    328. 

court  of  equity  will  decree  a  reconveyance  upon  the  pledge  being 
satisfied;  for  in  such  case  the  legal  remedy  would  not  be  ade- 
quate.®^ 

§  327.  Accounting  for  the  pledged  property. — Whether  the 
property  pledged  be  corporeal  or  incorporeal,  as  promissory 
notes,  bonds,  mortgages  or  negotiable  paper,  or  choses  in  action, 
or  whether  it  be  bonds  or  stocks  of  corporations,  or  stocks  held 
upon  margins,  when  the  pledged  indebtedness  is  discharged  or 
satisfied,  it  becomes  the  duty  of  the  pledgee  to  faithfully  and 
fairly  account  for  all  the  proceeds  of  the  pledged  property,  and 
all  the  moneys  or  benefits  that  he  has  received  on  account  of  the 
pledge,  and  to  redeliver  to  the  pledgor  all  that  remains  in  his 
hands  which  has  not  been  legally  disposed  of;  for  when  the  ob- 
ject of  the  pledge  has  been  carried  out  and  ceases  to  operate,  the 
whole  beneficial  interest  in  the  pledged  security  vests  absolutely 
in  the  pledgor,  and  it  becomes  the  duty  of  the  pledgee  to  rede- 
liver the  pledged  property  or  to  account  for  it. 

§  328.  Termination  of  the  relation. — The  pledge  may  be  ter- 
minated (1)  by  redelivery  of  the  property,  (2)  by  payment  of 
the  debt  or  performance  of  the  obligation,  (3)  by  tender  of  the 
amount  due,  (4)  by  loss  or  destruction  of  the  pledged  property, 

(5)  by  sale  by  the  pledgee  or  by  his  misuse  of  the  property, 

(6)  by  merger,  and  (7)  at  the  pledgor's  option,  by  conversion 
by  the  pledgee. 

These  several  ways  of  terminating  the  relation  have  been  more 
or  less  discussed  and  we  need  but  call  attention  to  them  in  this 
connection. 

(1)  By  redelivery  of  the  property. — Possession  of  the  prop- 
erty is  essential  to  a  valid  pledge;  and  while,  as  between  the 
pledgor  and  pledgee,  the  pledged  relation  might  not  be  extin- 
guished by  a  temporary  redelivery  of  the  property,  as  between 
tona  fide  purchasers  or  creditors  of  the  bailor,  the  pledge  would 
be  at  an  end.  The  parties,  of  course,  could  terminate  the  rela- 
tion by  an  agreement  to  that  effect. 

(2)  By  payment  of  the  debt. — This  has  been  fully  discussed. 
The  pledge  only  exists  for  the  purpose  of  securing  the  paj^ment 
of  the  debt  or  performance  of  the  obligation,  and  when  that  is 
done  it  goes  without  saying  that  the  lien  of  the  pledge  could  have 
no  further  existence. 

62  Bryson  v.  Reynor,  25  Md.  242;  Hasbrouck  v.  Vandervoort,  4,  Sand. 
(N.  Y.)  74. 


§    328.]  RIGHTS   AND    OBLIGATIONS    AFTER    DEFAULT,  313 

(3)  Tender  of  the  amount  due. — Tender  of  the  amount  due, 
and  a  demand  for  the  redelivery  of  the  property,  would,  as  we 
have  seen,  work  the  same  result  as  a  payment  or  performance  of 
the  obligation. 

(4)  By  loss  or  destruction  of  the  pledged  property. — In  such 
case  the  pledge  or  lien  of  the  property  would  cease,  because 
there  would  be  no  subject-matter  to  which  it  could  attach.  The 
question  of  liability  might  be  important.  The  bailee  is  bound,  as 
we  know,  to  exercise  ordinary  diligence  in  the  care  of  the  prop- 
erty; so  if  it  was  lost  through  his  fault,  the  pledgor  would  be 
entitled  to  a  release  of  the  indebteness  to  the  extent,  at  least, 
of  the  value  of  the  property;  and  if  the  value  of  the  property 
should  exceed  the  amount  of  the  indebtedness,  to  a  judgment 
for  the  excess.  If  the  loss  were  not  occasioned  by  the  fault  of 
the  bailee,  or  if  it  were  occasioned  by  the  fault  of  the  bailor,  then 
the  debt  would  in  no  way  be  extinguished  by  reason  of  the  loss. 

(5)  By  sale  of  the  pledged  property  or  hy  his  misuse  of  it. — If 
the  pledgee  without  authority  undertakes  to  seU  the  pledged 
property  and  thus  deprives  the  pledgor  of  it,  or  if  he  misuses  it, 
thus  violating  the  object  of  the  pledge  and  the  implied  agree- 
ment, it  would  be  held  to  be  a  conversion  upon  his  part  and  the 
lien  of  the  pledge  would  be  extinguished,  and  the  pledgee  in  such 
case  would  be  liable  for  the  damage  occasioned  by  such  a  con- 
version. 

(6)  By  merger. — Where  the  pledgee  purchases  the  title  of  the 
pledged  property  from  the  pledgor,  he  would  own  both  the  title 
and  the  right  to  the  possession,  and  the  lien  of  the  pledge  would 
merge  in  the  title  thus  purchased  by  the  pledgee. 

(7)  By  conversion. — Conversion  may  be  the  result  of  the  ille- 
gal procedure  of  the  bailee.  So  long  as  the  debt  remains  unpaid 
and  is  not  barred  by  the  statutes  of  limitation,  and  the  bailee 
has  not  been  guilty  of  a  misuse  of  the  property,  or  of  some  of 
the  acts  which  would  terminate  the  lien,  there  can  be  no  con- 
version. 

When  for  any  reason  the  lien  of  the  pledge  has  been  extin- 
guished, it  is  the  duty  of  the  pledgee  to  redeliver  the  property 
pledged,  or  the  balance  remaining  in  his  hands,  and  he  cannot 
avoid  this  duty  unless  it  transpires  that  the  pledgor  was  not  the 
real  owner,  and  in  that  case  he  must  deliver  it  to  the  real  owner. 
Should  he  fail  upon  demand  to  so  redeliver  the  property  or  to 
account  for  it,  the  pledgor,  or  the  real  owner,  could  at  his  op- 
tion bring  an  action  to  recover  the  property  or  its  value. 


PAET   THIED 


INNKEEPERS  AND  BOARDING-HOUSE 
KEEPERS 


CHAPTER  I. 
INNS  AND  INNKEEPERS. 


329.  An  inn. 

330.  Who  are  innkeepers. 

331.  The  test. 


§  332.  Some  essential  characteris- 
tics. 
333.  Restaurants  and  cafes. 


Thus  far  we  have  discussed  ordinary  bailments,  that  is,  that 
class  of  bailments  which  falls  within  the  ordinary  liability  that 
attaches  to  bailees.  We  are  now  to  discuss  one  of  the  classes  of 
extraordinary  bailments,  i.  e.,  a  bailment  where  the  liability 
which  attaches  is  extraordinary. 

§  329.  An  inn. — While  the  origin  and  history  of  the  inn 
would  no  doubt  be  of  interest  and  profit  to  the  student,  we  can- 
not expect  to  give  here  in  detail  more  than  may  be  deemed  suffi- 
cient to  help  us  to  comprehend  the  reasons  for  the  extraordinary 
rules  of  liability  that  the  law  has  attached  to  the  innkeeper,  in 
its  efforts  to  surround  the  guest  with  what  was,  in  the  early 
days  at  least,  deemed  a  necessary  protection. 

An  inn  has  been  defined  to  be  "a  public  house  for  entertain- 
ment for  all  who  choose  to  visit  it."  In  discussing  this  subject 
our  thoughts  are  at  once  occupied  with  the  history  of  the  old 
English  inns  and  the  French  hostelries  so  prominent  in  the  ear- 
lier history  of  travel  and  entertainment  in  those  countries.  We 
remember  the  descriptions  of  the  scenes  of  revelry  and  good 
cheer,  and  often  the  danger,  the  riot  and  robbery.  The  smoking 
mugs  of  hot-brewed  ale,  with  hot  brandy  and  water  quaffed 
amid  the  curling  tobacco  smoke  of  the  bar-room,  help  to  set  the 
picture.  Such  scenes  were  seldom  if  ever  interrupted  except  by 
the  arrival  of  a  cavalcade  of  travelers  making  their  way  through 


316  INNKEEPERS  AND   BOARDING-HOUSE   KEEPERS.         [§    329. 

a  dangerous  and  almost  roadless  country,  or  the  winding  of  the 
blasts  from  the  trumpet  of  the  coach-driver  as  he  approached 
the  inn  where  passengers,  travelers,  servants  and  animals  were  to 
be  refreshed  and  cared  for.  It  was  the  place  where  "everything 
needed  for  the  traveler  on  his  way"  was  supposed  to  be  kept 
and  furnished  for  hire,  whether  it  be  for  man  or  beast ;  so  within 
the  curtilage  of  the  inn  were  found  not  only  the  house  that  shel- 
tered, and  warmed,  and  furnished  entertainment  for  the  guest 
and  his  servants,  but  the  yards,  barns  and  stables  where  the  ani- 
mals and  vehicles  that  brought  the  guests  were  cared  for.  The 
inn  comprised  all  these,  and  all  these  were  said  to  be  the  inn. 

The  definition  in  Lacey  v.  Thompson,^  by  Best,  J.,  gives  us 
something  of  an  idea  of  the  English  inn;  "A  house,  the  owner 
of  which  holds  out  that  he  will  receive  all  travelers  and  sojourn- 
ers who  are  willing  to  pay  a  price  adequate  to  the  sort  of  accom- 
modation provided,  and  who  come  in  a  situation  in  which  they 
are  fit  to  be  received."  And  the  definition  of  Bailey,  J.,  found 
in  the  same  case :  "  A  house  where  a  traveler  is  furnished  with 
everything  which  he  has  occasion  for  while  on  his  way."  These 
definitions,  it  will  be  noticed,  include  both  solids  and  fluids, 
whatever  the  traveler  "has  occasion  for  while  on  his  way," 
whatever  it  be  that  is  desired  by  him  to  eat  or  to  drink.  So  it 
would  seem  that  it  was  essentially  a  place  where  not  only  pro- 
visions were  furnished,  but  where  wines,  spiritous  or  malt  liquors 
were  provided  for  those  who  patronized  the  inn.  And  not  only 
this,  but  the  inn  of  greatest  completeness  must  furnish,  as  well, 
entertainment  for  the  horses  or  animals  of  the  guest  as  well  as 
for  the  guest  himself.  It  need  not  be  said  that  long  since  it  has 
been  held  that  very  many  of  these  essentials  of  the  earlier  inn 
are  not  necessary  or  furnished  in  the  hotel  or  public  house  for 
the  entertainment  of  travelers  and  guests  of  modern  days. 

A  very  interesting  history  of  the  inns  of  the  earlier  days  is 
given  in  the  opinion  of  Mr.  Justice  Daly  in  the  case  of  Crom- 
well V.  Stevens,  a  New  York  case.^  He  says :  .  .  .  "  The  word 
is  of  French  origin,  being  derived  from  'hostel,'  and  more  re- 
motely from  the  Latin  word  'hospes,'  a  word  having  a  double 
signification,  as  it  was  used  by  the  Romans  both  to  denote  a 
stranger  who  lodges  at  the  house  of  another,  as  well  as  the  mas- 
ter of  the  house  who  entertains  travelers  or  guests.     Among  the 

1  3  B.  &  Aid.  283;  5  Eel.  285.  2  2  Daly,  15. 


§    329.]  INNS    AND    INNKEEPERS.  317 

Romans  it  was  a  universal  custom  for  the  wealthier  classes  to 
extend  the  hospitality  of  their  house,  not  only  to  their  friends, 
and  connections  when  they  came  to  the  city,  but  to  respectable 
travelers  generally.  They  had  inns,  but  they  were  kept  by  slaves, 
and  were  places  of  resort  for  the  lower  orders,  or  for  the  accom- 
modation of  such  travelers  as  were  not  in  a  condition  to  claim 
the  hospitality  of  the  better  classes.  On  either  side  of  the  spa- 
cious mansions  of  the  wealthy  patricians  were  smaller  apart- 
ments known  as  the  'hospitium,'  or  place  for  the  entertainment 
of  strangers,  and  the  word  Jiospes  was  a  term  to  designate  the 
owner  of  such  a  mansion,  as  well  as  the  guest  whom  he  received. 
This  custom  of  the  Romans  prevailed  in  the  earlier  part  of  the 
middle  ages.  From  the  fifth  to  the  ninth  century  traveling  was 
difficult  and  dangerous.  There  was  little  security  except  within 
castles  or  walled  towns.  The  principal  public  roads  had  been 
destroyed  by  centuries  of  continuous  war,  and  such  thorough- 
fares as  existed  were  infested  by  roving  bands  who  lived  exclu- 
sively by  plunder. 

"In  such  a  state  of  things  there  could  be  little  traveling,  and 
consequently  the  few  inns  to  be  found  were  rather  dens  to  which 
robbers  resorted  to  carouse  and  divide  their  spoils  than  places 
for  the  entertainment  of  travelers.  The  effect  of  a  condition  of 
society  like  this  was  to  make  hospitality  not  only  a  social  virtue 
but  a  religious  duty,  and  in  the  monasteries  and  in  all  the  great 
religious  establishments  provision  was  made  for  the  gratuitous 
entertainment  of  wayfarers  and  travelers.  Either  a  separate 
building  or  an  apartment  within  the  monastery  was  devoted  ex- 
clusively to  this  purpose,  which  was  in  charge  of  an  officer  called 
the  hostler,  who  received  the  traveler  and  conducted  him  to  his 
apartment,  which  was  fitted  up  with  beds,  where  he  was  allowed 
to  tarry  for  two  days,  and  to  have  his  meals  in  the  refectory, 
while,  if  he  journeyed  upon  horseback,  provender  was  provided 
by  the  hostler  for  his  beast  in  the  stables.  In  many  countries 
this  apartment,  or  guest  hall,  of  a  monastery  retained  the  origi- 
nal Latin  name  of  hospitium,  but  in  France  the  word  was  blended 
with  Jiospes  and  changed  into  hospice,  and  it  afterward  under- 
went another  change.  As  civilization  advanced,  and  the  nobility 
of  France  deserted  their  strong  castles  for  spacious  and  costly 
residences  in  the  towns,  they  erected  their  mansions  upon  a 
scale  sufficiently  extensive  to  enable  them  to  discharge  this  great 
duty  of  hospitality,  as  is  still,  or  was  very  recently,  the  custom 


318  INNKEEPERS  AND   BOARDING-HOUSE  KEEPERS,         [§    329. 

among  the  nobility  and  wealthier  classes  in  Russia,  and  in  some 
of  the  northern  countries  of  Europe.  Borrowing,  by  analogy, 
from  an  existing  word,  and  to  distinguish  it  from  the  guest  house 
of  the  monastery,  every  such  great  house  or  mansion  was  called 
a  hostel,  and  by  the  mutation  and  attrition  to  which  these  words 
are  subject  in  use,  the  's'  was  gradually  dropped  from  the  word, 
and  it  became  hotel.  As  traveling  and  intercourse  increased,  the 
duty  upon  the  nobility  of  entertaining  respectable  strangers  be- 
came too  onerous  a  burden,  and  establishments  in  which  this 
class  of  persons  could  be  entertained  by  paying  for  their  accom- 
modation sprung  up  in  the  cities,  towns,  and  upon  the  leading 
public  roads,  which,  to  distinguish  them  from  the  great  mansions 
or  hotels  of  the  wealthy,  and  at  the  same  time  to  denote  that 
they  were  superior  to  the  auberge  or  cabaret,  were  called  hostel- 
ries,  a  name  which  has  been  in  use  in  France  for  several  centu- 
ries, and  is  still  in  use  to  some  extent  as  a  common  term  for  inns 
of  the  better  class,  while  the  word  'hotel,'  in  France,  has  long 
ceased  to  be  confined  to  its  original  signification,  and  has  become 
a  word  of  most  extensive  meaning. 

' '  The  Saxon  word  inn  was  employed  to  denote  a  house  where 
strangers  or  guests  were  entertained,  down  to  the  time  of  the 
Norman  invasion;  and  under  the  Norman  rule  it  was  in  the 
popular  tongue  the  word  for  the  town  houses  in  which  great 
men  resided  when  they  were  in  attendance  on  court,  several  of 
which  became  afterwards  legal  colleges  under  the  well-known 
title  of  'inns  of  court.'  In  all  legal  proceedings,  however,  and 
wherever  the  Norman  French  was  spoken,  the  word  hostel  was 
the  term  for  all  such  establishments.  The  places  where  enter- 
tainment could  be  procured  for  a  compensation,  to  distinguish 
them  from  the  inns  or  great  houses  where  it  was  furnished  gratu- 
itously, were  called  in  English  common  inns;  while  in  Norman 
French,  by  a  change  analogous  to  that  which  had  occurred  in 
France,  they  were  first  called  hostelries,  and  afterward  hostries. 
To  'host'  was  to  put  up  at  an  inn;  and  'hostler,'  before  referred 
to  as  the  title  of  the  officer  in  the  monastery  who  was  charged 
with  the  entertainment  of  guests,  was  the  Norman  word  for  inn- 
keeper, and  was  in  use  until  about  the  time  of  Elizabeth,  when, 
the  keeping  of  horses  at  livery  becoming  a  distinct  occupation, 
it  was  the  term  for  the  keeper  of  a  livery-stable. 

"It  appears  from  a  note  of  Malone,  referred  to  in  Todd's  edi- 
tion of  Johnson 's  Dictionary,  that  the  word  '  hotel '  came  into  use 


§    329.]  INNS    AND    INNKEEPERS.  '  319 

in  England  by  the  general  introduction  in  London,  after  1760, 
of  the  kind  of  establishment  that  was  then  common  in  Paris, 
called  an  hotel  garni,  a  large  house,  in  which  furnished  apart- 
ments were  let  by  the  day,  week  or  month.  In  Barclay's 
Dictionary  (1772),  in  the  first  edition  of  Walker  (1791),  and  in 
Sheridan's  Dictionary  (1795),  hotel  is  given  as  the  proper  pro- 
nunciation of  hostel,  an  inn;  and  in  the  dictionaries  of  Jones 
(1798)  and  of  Perry  (1805)  it  is  incorporated  as  an  English 
word,  and  is  defined  in  the  latter  to  be  a  'lodging-house  for  the 
accommodations  for  gentlemen  and  genteel  families.'  Todd 
(1814)  defines  it  to  be  *  a  lodging-house  for  the  accommodation 
of  occasional  lodgers,  who  are  supplied  with  apartments  hired  by 
the  night  or  week.'  The  definition  given  by  Ejnowles  (1835)  is 
simply  'an  inn;'  Beid  (1845),  'an  inn  or  a  lodging-house;'  Boag 
(1848),  'an  inn;'  and  by  Dr.  Latham,  in  his  edition  of  John- 
son's Dictionary,  'an  inn  of  a  superior  kind.'     .     .     . 

"It  is  to  be  deduced  from  the  origin  and  history  of  the  word, 
and  the  exposition  that  has  been  given  of  it  by  English  and 
American  lexicographers,  that  a  hotel,  in  this  country,  is  what 
in  France  was  known  as  a  hostelrie,  and  in  England  as  a  com- 
mon inn  of  that  superior  class  usually  found  in  cities  and  large 
towns.  A  common  inn  is  defined  by  Bacon  to  be  '  a  house  for  the 
entertainment  of  travelers  and  passengers  in  which  lodging  and 
necessaries  are  provided  for  them  and  for  their  horses  and  at- 
tendants.' .  .  .  But  a  more  practical  idea  of  what  was  under- 
stood at  the  common  law  as  common  inns  may  be  gathered  from 
Hollingshed 's  description  of  them  as  they  existed  in  the  day's 
of  Elizabeth.  'Every  man,'  says  that  quaint  chronicler,  'may  in 
England  use  his  inn  as  his  own  house,  and  have  for  his  monie 
how  great  or  how  little  varitie  of  vittals  and  whatsoever  service 
himself  shall  think  fit  to  call  for.  If  the  traveler  have  a  horse, 
his  bed  doth  cost  him  nothing,  but  if  he  go  on  foot,  he  is  sure  to 
pay  a  penny  for  the  same.  Each  comer  is  sure  to  be  in  clean 
sheets  wherein  no  man  hath  lodged  since  they  came  from  the 
laundress,  or  out  of  the  water  wherein  they  were  washed. 
Whether  he  be  horseman  or  footman,  if  his  chamber  be  once  ap- 
pointed, he  may  carry  the  key  with  him  as  of  his  own  house  as 
long  as  he  lodgeth  there.  In  all  our  inns  we  have  plenty  of  ale, 
biere  and  sundrie  kinds  of  wine;  and  such  is  the  capacitie  of 
some  of  them  that  they  are  able  to  lodge  two  hundred  or  three 
hundred  persons  and  their  horses  at  ease,  and  with  very  short 


320  INNKEEPERS    AND    BOARDING-HOUSE    KEEPERS.  [§    331. 

warning  (to)  make  such  provision  for  their  diet  as  to  him  that  is 
unacquainted  withall  may  seem  to  be  incredible.'  And  another 
observer  (Fynes  Moryson),  writing  before  1614,  adds:  'If  the 
traveler  eats  with  the  host  or  at  the  common  table  his  meals  cost 
him  sixpence,  and  in  some  places  fourpence ;  but  if  he  will  eat  in 
his  chamber  he  commands  what  meat  he  will,  and  the  kitchen  is 
open  to  him  to  order  the  meat  to  be  dressed  as  he  likes  best.'  " 
This  perhaps  is  sufficient  as  to  the  early  history  of  the  inn. 

§  330.  Who  are  innkeepers. — Judge  Cooley  in  his  work  on 
Torts  adopts  the  following  definition:  "An  inkeeper  is  one  who 
holds  himself  out  to  the  public  as  ready  to  accommodate  all 
comers  with  the  conveniences  usually  supplied  to  travelers  on 
their  journey."  ^ 

In  Howth  V.  Franklin  the  court  defines  the  innkeeper  to  be 
' '  one  who  holds  himself  out  to  the  public  as  engaged  in  the  busi- 
ness of  keeping  a  house  for  the  lodgment  and  entertainment  of 
travelers  and  passengers,  their  horses  and  attendants  for  reason- 
able compensation, ' '  * 

Some  fine  distinctions  have  arisen  and  occupied  the  attention 
of  the  courts  as  to  who  are  innkeepers.  Every  person  who  fur- 
nishes to  the  traveler  entertainment  for  himself  and  attendants 
is  not  an  innkeeper.  One  who  occasionally  entertains  travelers 
for  compensation  when  it  suits  his  pleasure,  and  who  does  not 
hold  himself  out  as  the  keeper  of  a  house  for  the  accommodation 
of  the  traveling  public,  is  not  an  innkeeper.  For  example,  per- 
sons whose  houses  are  situated  along  the  public  roads  of  the 
country,  as  farmers  living  upon  farms  who  occasionally  or  even 
frequently  take  in  and  accommodate  travelers  and  receive  com- 
pensation therefor,  are  not  innkeepers,  nor  are  they  liable  as 
such,  nor  are  keepers  of  restaurants  and  eating-houses,  or  those 
giving  entertainment  only  occasionally,  or  persons  keeping  lodg- 
ing and  boarding  houses,  or  sleeping-car  and  steamship  compa- 
nies, for  these  do  not  hold  themselves  out  as  ready  to  furnish  ac- 
commodation for  all  comers;  and  it  has  been  held  that  keepers 
of  hotels  at  summer  resorts  and  watering  places  are  not  in  a 
strict  sense  innkeepers. 

§  331.  The  test. — The  test  may  be  seen  in  the  definition,  "one 
who  holds  himself  out  to  the  public  as  ready  to  accommodate  all 
comers  with  the  conveniences  usually  supplied  to  travelers  on 

3  Cooley  on  Torts  (2d  ed.),  757.         *  20  Tex.  798. 


§    333.]  INNS    AND    INNKEEPERS.  321 

their  journeys;"  in  other  words,  he  who  solicits  the  public  to 
come  to  his  inn  for  entertainment;  who  proclaims  by  word  or 
action  that  he  will  entertain  all  who  come  who  will  pay  the  price 
for  the  entertainment  and  are  fit  to  be  entertained.  It  may  be 
said  to  be  a  public  employment,  and  this  is  a  characteristic  dis- 
tinguishing the  innkeeper  from  a  mere  boarding-house  keeper; 
so  that  among  the  essential  characteristics  which  constitute  the 
place  an  inn  is  the  supplying  to  the  traveling  public  needed  en- 
tertainment. 

§  332.  Some  essential  characteristics. — The  accommodation 
of  the  guests  of  the  inn  is  the  principal  object  for  which  the  inn 
is  kept ;  to  furnish  food,  lodging,  entertainment  and  care  as  the 
public  demand.  In  Lewis  v.  Hitchcock'^  the  court  say:  "A  cof- 
fee-house, or  a  mere  eating-house,  is  not  an  inn.  To  constitute 
an  inn  there  must  be  some  provision  for  the  essential  needs  of  a 
traveler  upon  his  journey,  namely,  lodging  as  well  as  food.  These 
two  elements  of  an  inn  may  doubtless  be  present  in  very  dispro- 
portionate degrees  as  the  needs  of  the  situation  may  require,  but 
both  must  in  some  degree  be  present  to  constitute  an  inn." 

§  333.  Restaurants  and  cafes. — Something  more  than  the 
mere  providing  of  food  for  the  guest  or  customer  seems  to  be 
essential  to  the  inn.  The  restaurant  or  cafe  usually  provides  no 
care  for  the  customer;  that  is,  does  not  look  after  his  baggage, 
or  provide  a  place  to  stay.  One  has  not  that  thought  in  connec- 
tion with  it  that  is  coupled  with  the  thought  of  the  inn,  namely, 
a  temporary  home  for  the  guest,  a  place  where  he  can  rest  and 
for  the  time  call  it  his  domicile.  On  the  contrary,  the  ordinary 
restaurant  or  cafe  is  simply  a  place  where  the  customer  or  guest 
can  sit  at  the  table  and  be  provided  with  food  and  nourishment. 
Ordinarily  it  means  an  eating-house;  not  infrequently  a  bar- 
room is  a  part  of  it.  However,  a  restaurant  may  be  an  inn  if  it 
has  in  connection  with  it  apartments  for  its  customers  where 
lodgings  are  furnished,  and  the  ordinary  and  usual  essentials 
that  belong  with  the  inn  are  provided.    In  such  case,  of  course, 

5  10  Fed.  6;  Story  on  Bailments,  connection    with    his    inn    where 

sec.   475;    Carpenter  v.   Taylor,   1  his  guests  and  the  general  public 

Hill,  192;  Wintermute  v.  Clark,  2  might  obtain  baths  for  hire,  as  to 

Sand.    242;    People    v.    Jones,    54  such  bath  house  was  not  subject 

Barb.  316.     In  Walpert  v.  Rohan,  to   the   liability  of  an   innkeeper, 

126  Ga.  532,  6  L.  R.  A.  (N.  S.)  828.  and  in  the  notes  several  cases  are 

held  one  keeping  a  bath  house  in  collected  supporting  the  case. 
31 


322  INNKEEPERS  AND   BOARDING-HOUSE   KEEPERS.         [§    333. 

the  obligations  resting  upon  the  restaurant-keeper  would  be  simi- 
lar to  those  of  the  innkeeper.  In  the  case  of  Kopper  v.  Willis,^ 
Chief  Justice  Daly,  in  discussing  this  question,  says:  "In  Crom- 
well V.  8tevens  (2  Daly,  15),  I  had  occasion  to  examine  what 
constitutes  an  innlteeper,  not  only  by  a  review  of  the  adjudged 
eases  in  which  that  question  has  been  considered,  but  by  an  his- 
torical inquiry  into  the  origin  and  reason  of  the  rule  that  inn- 
keepers are  responsible  for  the  loss  of  the  property  of  their 
guests;  in  which  I  came  to  the  conclusion,  from  the  authorities, 
that  an  inn  is  a  house  where  all  who  conduct  themselves  prop- 
erly, and  who  are  able  and  ready  to  pay  for  their  entertainment, 
are  received,  if  there  is  accommodation  for  them,  and  who,  with- 
out any  stipulated  engagement  as  to  the  duration  of  their  stay, 
or  as  to  the  rate  of  compensation,  are,  while  there,  supplied, 
at  a  reasonable  charge,  with  their  meals,  lodging,  refreshments, 
and  such  services  and  attention  as  are  necessarily  incident  to 
the  use  of  the  house  as  a  temporary  home.  That  a  mere  res- 
taurant or  eating-house  is  not  an  inn,  nor  a  mere  lodging- 
house,  in  which  no  provision  is  made  for  supplying  the  lodgers 
with  meals ;  and  that  in  respect  to  houses  for  the  entertainment  of 
travelers,  of  which  there  are  many  in  this  and  other  cities ;  where 
the  guest  or  traveler  pays  so  much  a  day  for  his  room,  and  takes 
his  meals  or  not,  as  he  thinks  proper,  in  the  restaurant,  paying 
separately  for  each  meal,  as  he  takes  it,  they  are  to  be  considered 
inns,  if  the  restaurant  forms  part  of  the  establishment  and  the 
whole  house  is  kept  under  one  general  management  for  the  re- 
ception of  aU  guests  or  travelers  that  may  come  there. ' ' 

As  to  sleeping-car  and  steamboat  companies  the  authorities  are 
not  entirely  harmonious  as  to  their  liability  as  innkeepers.  Their 
duties  are  in  many  respects  quite  similar,  and  the  same  reasons 
that  occasioned  the  laying  upon  the  innkeeper  the  extraordinary 
liability  largely  exists  in  the  case  of  the  sleeping-car  company 
or  the  steamboat  company;  but  while  this  is  true,  the  great 
weight  of  authority  holds  that  sleeping-car  companies  are  not 
innkeepers  or  liable  as  innkeepers,  but  as  to  steamboat  compa- 
nies the  question  is  by  no  means  settled.  While  the  innkeeper  is 
bound  to  receive  as  guests  all  who  may  apply  at  his  inn  who  are 
suitable  and  ready  and  willing  to  pay  the  price  of  the  entertain- 
ment, the  sleeping-car  companies  limit  their  accommodations  to 
those  persons  who  have  purchased  first-class  tickets  upon  their 

6  9  Daly,  460. 


§    333.]  INNS   AND    mNKEEPERS.  323 

train,  and  do  not  hold  themselves  out  to  furnish  anything  except 
a  place  to  sleep  while  upon  the  journey;  the  passenger  not  hav- 
ing the  privilege  of  a  room  where  he  can  lock  the  door  and  guard 
against  persons  who  seek  to  enter,  but  the  accommodations  are 
simply  in  accordance  with  an  express  contract  that  has  been 
made  with  the  company.  Neither  does  the  company  undertake 
to  care  for  any  property  or  goods  of  the  traveler. 

In  Pullman  Car  Co.  v.  Smith  ^  the  court  say :  ' '  The  innkeeper 
is  obliged  to  receive  and  care  for  all  the  goods  and  property  of 
the  traveler  which  he  may  choose  to  take  with  him  upon  the 
journey.  Appellant  (meaning  the  Pullman  Car  Co.)  does  not 
receive  pay  for  nor  undertake  to  care  for  any  property  or  goods 
whatever,  and  notoriously  refuses  to  do  so.  The  custody  of  the 
goods  of  the  traveler  is  not,  as  in  the  case  of  the  innkeeper,  ac- 
cessory to  the  principal  contract  to  feed,  lodge  and  accommodate 
the  guest  for  a  suitable  reward,  because  no  such  contract  is  made. 
The  same  necessity  does  not  exist  here  as  in  the  case  of  a  com- 
mon inn.  At  the  time  when  this  custom  of  an  innkeeper's  lia- 
dility  had  its  origin,  wherever  the  end  of  the  day's  journey  of 
the  wayfaring  man  brought  him,  there  he  was  obliged  to  stop  for 
the  night,  and  intrust  his  goods  and  baggage  to  the  custody  of 
the  innkeeper.  But  here  the  traveler  was  not  compelled  to  ac- 
cept the  additional  comfort  of  a  sleeping-car;  he  might  have 
remained  in  the  ordinary  car;   and  there  were  easy  methods 

7  73  111.  364;  Lewis  v.  New  York  of  the  case  is  dependent  upon  the 
Sleeping-car  Co.,  143  Mass.  267.  owners  and  officers  of  the  car  to 
"A  sleeping-car  company  holds  it-  guard  him  and  the  property  he 
self  out  to  the  world  as  furnish-  has  with  him  from  danger  from 
ing  safe  and  comfortable  cars,  thieves  or  otherwise.  The  law 
and  when  it  sells  a  ticket  it  im-  lays  the  duty  on  the  part  of  the 
pliedly  stipulates  to  do  so.  It  in-  car  company  to  afford  him  this 
vites  passengers  to  pay  for  and  protection.  While  it  is  not  liable 
make  use  of  its  cars  for  sleeping,  as  a  common  carrier  or  an  inn- 
all  parties  knowing  that  during  holder,  yet  it  is  its  duty  to  use 
the  greater  part  of  the  night  the  reasonable  care  to  guard  the  pas- 
passenger  will  be  asleep,  power-  sengers  from  theft,  and  if  through 
less  to  protect  himself  or  to  want  of  care  the  personal  effects 
guard  his  property.  He  cannot,  of  a  passenger,  such  as  he  might 
like  the  guest  of  an  inn,  by  lock-  reasonably  carry  with  him,  are 
ing  the  door  guard  against  dan-  stolen,  the  company  is  liable  for 
ger.  He  has  no  right  to  take  such  it."  Woodruff  Sleeping  &  Par- 
steps  to  protect  himself  in  a  lor  Car  Co.  v.  Diehl,  84  Ind.  474, 
sleeping  car,  but  by  the  necessity  6  Ky.  L.  Rep.  279. 


324  INNKEEPERS  AND   BOARDING-HOUSE  KEEPERS.         [§    333. 

within  his  reach  by  which  both  money  and  baggage  could  be 
safely  transported."  The  supreme  court  of  Nebraska,  how- 
ever, gives  us  an  adverse  holding  to  that  of  the  great  majority  of 
the  courts  in  this  country.  In  the  case  of  Pullman  Palace  Car 
Co.  V.  Lowe  *  the  court  say :  ''Except  in  the  matter  of  furnishing 
meals,  there  seems  to  be  no  essential  difference  between  the  ac- 
commodations at  an  inn  and  those  on  a  sleeping-car,  except  that 
the  latter  are  necessarily  on  a  smaller  scale  than  at  an  inn.  In 
both  cases  the  porter  meets  the  traveler  at  the  door  and  takes 
whatever  portable  articles  he  may  have  with  him.  He  waits 
upon  him  and  the  other  passengers  in  the  car  so  long  as  they  re- 
main therein.  The  traveler  is  not  required  to  sit  in  his  seat  dur- 
ing the  day,  but  may,  if  he  so  desires,  go  forward  into  the  other 
cars  on  the  train,  and  at  stations  go  out  on  the  platform.  .  .  . 
If  it  is  said  that  it  would  be  unjust  to  hold  the  company  to  the 
same  liability  as  an  innkeeper  because  thieves  might  engage  one 
or  more  berths  in  a  car,  and  at  the  first  opportunity  leave  the 
car  carrying  what  articles  they  could  steal  before  leaving;  the 
same  is  true  of  an  innkeeper.  Thieves,  in  the  garb  of  respectable 
people,  may  take  rooms  at  an  inn,  and  afterward  steal  what  they 
can  and  escape,  yet  no  one  would  contend  that  the  inn-keeper 
would  not  be  responsible  for  the  property  so  stolen,  and  this 
whether  it  is  stolen  at  night  or  in  the  day-time ;  yet  in  many  of 
the  large  inns  of  this  country  at  least,  there  are  numerous  doors 
for  ingress  and  egress,  while  in  a  sleeping-car  there  are  but  two. 
Were  meals  served  on  a  sleeping-car  no  one  would  contend  that 
it  differed  from  an  inn  in  its  accommodations. ' ' 

But  the  great  weight  of  authority  is  that  sleeping-car  com- 
panies are  not  innkeepers,  and  they  are  not  subject  to  the  ex- 
traordinary liability  that  attaches  to  the  innkeeper.  In  Clark 
V.  Burns  ^  the  court  say :  ' '  The  liabilities  of  common  carriers 
and  innkeepers,  though  similar,  are  distinct.  No  one  is  subject 
to  both  liabilities  at  the  same  time  and  with  regard  to  the  same 
property.  The  liability  of  an  innkeeper  extends  only  to  goods 
put  in  his  charge  as  keeper  of  a  public  house,  and  does  not  at- 
tach to  a  carrier  who  has  no  house  and  is  engaged  only  in  the 
business  of  transportation."  However,  in  case  of  steamboat 
companies,  the  authorities  do  not  agree.  There  is  a  line  of  au- 
thorities which  holds  that  where  the  passenger  has  been  assigned 

8  28  Neb.  239.  »  118  Mass.  277. 


§    333.]  INNS    AND    INNKEEPERS.  325 

to  a  stateroom  in  a  steamboat,  of  which  he  has  charge  similar  to 
that  of  a  guest  of  an  hotel,  the  extraordinary  liability  would  at- 
tach that  attaches  to  the  hotel-keeper,  and  that  in  such  case  the 
steamboat  company  would  be  placed  upon  the  same  footing  as 
the  innkeeper.  In  Michigan  the  supreme  court  divided  upon  the 
question  in  the  case  of  McEee  v.  Owen}^ 

10  15  Mich.  115;  Adams  v.  N.  J.  steamboat    company    is    liable    to 

Steamboat  Co.,  151  N.  Y.  163.    In  the  same  extent  as  an  innkeeper, 

this  case  the  briefs  will  be  found  but  distinguishes  between  the  lia- 

very  full,  citing  cases  in  support  bility  of  the   steamboat  company 

of   the   different   doctrines,    while  and  the  Pullman  Car  Company, 
the    case    itself    holds    that    the 


CHAPTER  11. 


GUESTS. 


334.  Who  are  guests. 

335.  How  far  traveled,  immate- 

rial. 

336.  A  guest  or  a  boarder. 

337.  Length  of  time — Contracts 

for  rates  will  not  always 
determine. 

338.  Personal    presence    of    the 

guest. 

339.  The  furnishing  of  what  ac- 

commodations necessary. 

340.  Mere  visitors. 


?  341.  The  length  of  time  one  re- 
mains, immaterial. 

342.  The  purpose  for  which  one 

uses  the  inn. 

343.  Who    must    the    innkeeper 

receive  as  guests. 

344.  Limitations. 

345.  Liabilty  for  refusing  to  re- 

ceive a  guest. 

346.  May  refuse  to  receive. 

347.  When  a  guest  is  taken  ill 

with  contagious  disease. 

348.  Disorderly  conduct. 


§  334.  Who  are  guests. — The  definition  of  an  inn,  already- 
given  as  *'a  public  house  of  entertainment  for  all  who  choose  to 
visit  it,"  indicates  who  are,  in  a  legal  sense,  guests  of  the  inn. 
Some  of  the  authorities  have  considered  it  a  requisite,  in  deter- 
mining who  are  guests,  that  they  should  be  travelers  or  way- 
farers, and  some  of  the  courts  have  adopted  that  idea  in  distin- 
guishing them  from  boarders  or  from  residents  of  the  place;  but 
the  better  opinion  seems  now  to  be  that  it  is  not  essential  that  the 
persons  should  come  from  any  distance,  and  the  definition  sup- 
ported by  the  weight  of  authority  would  seem  to  be  the  one 
adopted  by  Carpenter,  J.,  in  Walling  v.  Potter:'^  **A  guest  is 
one  who  patronizes  an  inn  as  such." 


1  Walling  V.  Potter,  35  Conn. 
183.  The  defendant,  it  was  ad- 
mitted, was  an  innkeeper.  The 
plaintiff  and  defendant  both  re- 
sided in  the  town  of  Kent,  and 
the  inn  was  in  Kent  about  half  a 
mile  from  the  plaintff's  residence. 
The  plaintiff  came  to  the  inn  on 
an  evening,  stayed  there  over 
night    and    took   breakfast    there. 


and  paid  the  defendant  for  his 
night's  lodging  and  breakfast  his 
usual  charge  for  such  entertain- 
ment. The  plaintiff  claimed  that 
on  these  facts  he  was  a  guest  at 
the  inn  and  entitled  to  treat  the 
defendant  as  innkeeper  and  hold 
him  responsible  as  such.  The  de- 
fendant claimed  that  the  plaintiff 
was  not  a  traveler  or  a  wayfaring 


§  336.] 


GUESTS. 


327 


In  Wintermute  v.  Clark  "^  the  court  say:  "In  order  to  charge 
the  defendant  as  an  innkeeper  it  was  not  necessary  to  prove  that 
it  was  only  for  the  reception  of  travelers  that  his  house  was  kept 
open. ' ' 

§  335.  How  far  traveled,  immaterial. — ^A  townsman  or  a 
neighbor  may  be  a  guest  at  an  inn  as  well  as  one  who  has  traveled 
hundreds  of  miles  or  from  another  country.  It  is  not  a  question 
of  distance,  but  rather  one  of  intention  on  the  part  of  the  per- 
son who  applies  for  entertainment.  If  he  seeks  the  privileges 
of  the  inn,  asking  for  entertainment  as  a  guest,  it  is  enough,  and 
he  must  be  so  received.^  It  has  been  said  that  any  one  away  from 
home,  receiving  accommodations  at  an  inn  as  a  traveler,  is  a 
guest  and  entitled  to  hold  the  innkeeper  responsible  as  such. 

§  336.  A  gnest  or  a  boarder. — The  discussion  as  to  who  are 
guests  at  once  suggests  the  inquiry  as  to  who  are  boarders.    It  is 


man  and  not  a  guest  at  the  inn 
so  as  to  be  authorized  to  charge 
the  defendant  as  an  innkeeper  for 
the  loss  claimed.  The  court  held 
in  that  case  that  distance  was  not 
material;  that  a  townsman  or 
neighbor  may  be  a  traveler,  and 
therefore  a  guest  at  an  inn;  that 
if  he  resided  at  the  inn  his  rela- 
tions would  be  that  of  a  boarder, 
but  if  he  resided  away  from  it, 
whether  far  or  near,  and  came  in 
for  entertainment  as  a  traveler, 
and  received  it  as  such,  paying 
the  customary  rates,  there  were 
no  reasons  why  he  should  not  be 
held  to  be  a  guest  and  entitled  to 
the  rights  and  privileges  of  a 
guest.  Where  one  went  to  an  inn 
and  was  received  as  a  guest  the 
fact  that  after  he  had  remained 
a  week  he  was  charged  at  a 
weekly  rate  did  not  change  his 
status.  R.  L.  Polk  &  Co.  v.  Mel- 
enbacker,  136  Mich.  611,  99  N.  W. 
867.  One  who  lived  for  seventeen 
months  at  a  hotel  which  was  kept 
for  transients  and  lodgers,  who 
moved  property  to  his  room,  indi- 
cating an  intention  to  make  more 


than  a  temporary  sojourn,  and 
who  made  arrangements  to  stay 
at  the  hotel  with  the  proprietor 
instead  of  the  clerk,  was  held  not 
a  traveler  and  guest  within  the 
rule  making  an  innkeeper  an  in- 
surer of  the  property  of  his  guest. 
Crapo  v.  Rockwell,  94  N.  Y.  S. 
1122.  One  away  from  home  who 
receives  accommodations  at  an 
inn  as  a  traveler,  held  to  be  a 
guest.  Pullman,  etc.  Car  Co.  v. 
Lowe,  28  Neb.  239,  6  L.  R.  A.  809; 
Fay  V.  Pacific,  etc.  Co.,  93  Cal.  253, 
16  L.  R.  A.  188.  Persons  entering 
the  hotel  for  pleasure  or  profit  to 
be  derived  from  intercourse  with 
inmates  are  not  guests,  and  are 
there  by  an  implied  license  of  the 
innkeeper  who  may  revoke  the 
license  and  expel  them  at  any 
time.  State  v.  Steel,  106  N.  C.  766, 
8  L.  R.  A.  516,  and  notes.  Other- 
wise if  he  enters  with  hona  fide  in- 
tention of  becoming  a  guest.     lb. 

2  Wintermute  v.  Clark,  5  Sandf. 
242. 

3  In  Curtis  v.  Murphy,  63  Wis. 
4,  the  court  say:  "In  these  defini- 
tions the  prominent  idea  is  that  a 


328  INNKEEPERS   AND   BOARDING-HOUSE   KEEPERS.         [§    337. 

important  that  we  should  be  able  to  determine  this,  as  it  often 
fixes,  as  we  shall  see,  the  extent  of  the  liability  of  the  innkeeper. 
For  a  better  understanding  of  the  question  we  have  therefore 
deemed  it  best  to  discuss  these  questions  together.  The  liability 
of  the  innkeeper  is  based  largely  upon  public  policy.  From  the 
fact  that  persons  traveling  through  the  country  are  of  necessity 
compelled  to  put  up  at  inns,  for  entertainment — transeuntes 
causa  hospitandi  (from  which  last  word  they  are  called  guests), 
— without  knowing  anything  about  the  character  of  the  house, 
the  law  gives  an  assurance  of  the  safety  of  their  property  and 
themselves. 

Say  the  court,  by  Parsons,  J.,  in  Neal  v.  Wilcox:  *  "It  is  some- 
times difficult  to  draw  the  line  between  guests  and  boarders ;  they 
frequently  run  into  each  other  like  light  and  shade,  so  the  line 
between  a  common  carrier  and  a  bailee  to  carry  is  sometimes 
scarcely  perceptible;  but  the  law  makes  the  distinction  and  it  is 
the  province  of  the  judge  to  draw  the  line.  A  transient  cus- 
tomer at  an  inn,  although  he  be  not  a  traveler  or  stranger,  is 
considered  as  a  guest.  A  lodger  who  sojourns  at  an  inn  and 
takes  a  room  for  a  specified  time  and  pays  for  his  lodging  on  a 
special  agreement,  as  by  the  month  or  week,  is  a  boarder.  So  the 
reason  restricts  the  action  to  one  who  comes  for  entertainment 
causi  hospitandi." 

§  337.  Length  of  time — Contracts  for  rates  will  not  always 
determine. — It  cannot  be  said,  however,  that  it  can  always  be 
determined  whether  one  is  a  boarder  or  a  lodger  from  the  fact 
that  he  has  made  a  contract  to  remain  for  a  certain  length  of 
time,  or  that  he  is  to  have  reduced  rates.  The  traveler  who  is  to 
stay  but  for  a  night  may  have  a  contract  for  reduced  rates;  on 
the  other  hand,  one  who  is  to  remain  for  a  considerable  length  of 
time  may  have  no  such  contract  and  may  be  considered  as  a 
transient.  It  has  been  said  that  it  depends  more  upon  the  status 
of  the  person.  Is  he  a  transient  or  is  he  a  traveler?  Or  is  he 
one  who  is  intending  to  stay,  to  become  settled  at  the  place  as 

guest   must   be    a    traveler,    way-  A  townsman  or  neighbor  may  be 

farer  or  a  transient  comer  to  an  a  traveler,  and  therefore  a  guest 

inn  for  lodging  and  entertainment,  at  an  inn,  as  well  as  he  who  comes 

It   is   not   now    deemed   essential  from  a  distance  or  from  a  foreign 

that  a  person  should  have  come  country." 

from   a   distance   to   constitute   a         *  4  Jones  L.  Rep.  (N.  C.)  148. 
guest.     'Distance  is  not  material.' 


§  337.] 


GUESTS, 


329 


his  home  ?  If  he  is  at  the  inn  expecting  to  remain  and  make  the 
place  his  home  for  a  definite  period,  and  at  a  fixed  rate  by  the 
week  or  the  month,  there  can  be  little  question  that  his  status 
would  be  that  of  a  boarder. 

In  Moore  v.  Long  Beach  Co.,^  the  plaintiff  having  arranged  for 
a  long  stay  with  his  family,  it  was  held  that  he  was  a  boarder. 
In  McGee  v.  Pacific  Imp.  Co.  it  was  held  that  the  question  was 
one  of  fact  to  be  determined  by  the  court  upon  all  the  evidence 
before  it.  "Whether  the  plaintiff  made  a  special  arrangement 
respecting  her  stay  with  the  defendant  was  only  evidence  to  be 
considered  by  the  court  in  determining  the  ultimate  fact  whether 
she  was  a  guest  or  a  boarder.  Even  if  the  finding  of  the  court 
that  she  had  made  special  arrangements  with  the  defendant  for 
board  and  lodging  by  the  week  had  been  sustained  by  the  evi- 
dence, that  fact  would  not  be  determinative  of  the  issue  whether 
she  was  a  guest  or  a  boarder,  but  would  be  merely  evidence  to  be 
considered  in  determining  that  issue. ' '  ® 


5  87  Cal.  483;  McGee  v.  Pacific 
Imp.  Co.,  98  Cal.  678,  93  Cal.  253; 
Pinkerton  v.  Woodard,  33  Cal.  597, 
91  Am.  Dec.  657;  Hancock  v. 
Rand,  17  Hun  (N.  Y.),  279,  94  N. 
Y.  1,  46  Am.  Rep.  112;  Hall  v. 
Pike,  100  Mass.  495;  Pay  v.  Pa- 
cific Imp.  Co.,  93  Cal.  259.  "An 
innkeeper  may  contract  specially 
as  a  boarding-house  keeper." 
Story  on  Bailments,  225.  See  note 
to  Manufacturing  Co.  v.  Miller,  21 
L.  R.  A.  229;  Fisher  v.  Kelsey,  121 
U.  S.  383. 

6  "The  guest  comes  without  any 
bargain  for  time,  remains  without 
one,  and  may  go  when  he  pleases, 
paying  only  for  the  actual  enter- 
tainment received.  The  rule  is 
not  changed  by  the  fact  that  the 
person  remains  a  long  time  at  the 
inn  in  this  way."  Shoecraft  v. 
Bailey,  25  Iowa,  553;  Metzger  v. 
Schnabel,  23  Misc.  (N.  Y.)  698; 
Pullman  Car  Co.  v.  Lowe,  28  Neb. 
239,  26  Am.  St.  Rep.  325;  Berk- 
shire Woolen  Co.  v.  Proctor,  7 
Cush.  (Mass.)  417.    In  Lusk  v.  Be- 


lote,  22  Minn.  468,  "a  father  who 
comes  from  another  state  where- 
in he  resides  and  stays  for  a 
month  with  his  family  at  a  hotel 
in  which  the  family  is  stopping  is 
a  traveler  and  can  recover  for  the 
theft  of  his  watch  from  the  rooms 
occupied  by  himself  and  family  at 
the  hotel,  where  his  purpose  evi- 
dently was  to  make  a  flying  visil 
to  his  family  and  a  merely  tem- 
porary stay  in  the  city  in  which 
the  inn  was  located."  "In  this 
case  it  was  laid  down  that  the 
father's  status  as  a  traveler,  like 
any  other  status,  was  shown  to 
exist,  and  is  presumed  to  con- 
tinue, and  that  neither  the  agree- 
ment by  which  he  was  to  pay  spe- 
cial rates  for  himself  and  family 
lower  than  those  ordinarily 
charged  for  transient  guests,  nor 
the  fact  that  he  remained  in  the 
inn  for  a  month,  nor  any  other 
fact  appearing  in  the  case,  fur- 
nished any  evidence  that  his  char- 
acter was  changed  from  that  of  a 
traveler  to  that  of  a  boarder." 


330 


INNKEEPERS  AND   BOARDING-HOUSE  KEEPERS. 


[§  338. 


§  338.  Personal  presence  of  the  guest. — The  personal  pres- 
ence of  the  guest  at  the  hotel  is  not  always  necessary  in  order  to 
hold  the  innkeeper  liable  as  an  innkeeper  for  his  property  which 
has  been  lost  at  the  inn ;  as  where  his  baggage  was  taken  there  in 
charge  of  his  servants  or  a  member  of  his  family  in  a  way  that 
the  law  would  imply  that  while  there  it  is  in  his  possession. 
This,  no  doubt  is  carrying  the  rule  to  its  farthest  limit,  and  it 
has  been  questioned  whether  it  is  the  law.  The  inn  or  hotel  is 
for  the  entertainment  of  the  guest  primarily,  and  the  protection 
of  his  baggage  or  property  which  accompanies  him  is  an  incident 
to  the  entertainment,  and  it  would  seem  that  it  is  carrying  the 
rule  a  little  too  far  to  say  that  an  innkeeper  could  be  made  a 
bailee  of  the  property  of  a  person  and  subjected  to  the  extraor- 
dinary liability  of  an  innkeeper  where  the  owner  is  not  enter- 
tained as  a  guest  at  the  hotel.'^  Some  of  the  courts  contending 
for  the  rule  undertake  to  draw  a  distinction  between  a  case 
where  property  intrusted  to  a  bailee  is  lost  by  the  bailee,  and  one 


7  In  a  very  early  case  (Towson 
V  Havre  de  Grace  Bank,  6  Harr. 
&  Johns.  (Md.)  47),  one  was  in- 
trusted with  a  sum  of  money  by 
the  bank  to  be  passed  in  Balti- 
more for  the  benefit  of  the  bank, 
or  to  be  returned.  The  agent  for 
the  bank  agreed  to  this  undertak- 
ing, which  was  entirely  for  the 
accommodation  of  the  bank.  He 
proceeded  to  Baltimore,  taking 
v,'ith  him  the  money — the  bank 
notes — and  put  up  as  a  guest  at 
the  house  of  the  appellant,  who 
was  a  common  innkeeper  in  the 
city  of  Baltimore.  His  money  was 
intrusted  to  the  barkeeper  of  the 
inn  for  safe  keeping,  and  through 
him  was  lost.  The  action  was 
brought  by  the  bank  against  the 
innkeeper.  After  reciting  the 
facts  the  court  say:  "It  is  the 
profit,  then,  to  the  innkeeper 
which  alone  creates  his  liability, 
and  it  matters  not  out  of  whose 
funds  the  expenses  of  the  guest 
are  defrayed.  It  is  enough  that 
he     receives     the     consideration 


from  whence  his  responsibility 
arises — the  premium  for  his  risk. 
Thus  it  is  said  in  a  case  in  Yelver- 
ton  that  'if  A.  sends  his  money  by 
his  friend  who  is  robbed  in  the 
inn  at  which  he  is  a  guest,  A.  shall 
have  the  action.'  And  there  is  no 
reason  why  it  should  not  be  so; 
the  innkeeper  being  chargeable 
not  on  the  ground  that  he  enter- 
tains the  owner  of  the  money  or 
other  goods,  but  because  he  re- 
ceives, no  matter  by  whom  paid, 
a  compensation  for  the  risk.  The 
judgment  in  this  case,  therefore, 
ought  to  be  affirmed."  In  Coyken- 
dall  V.  Eaton,  55  Barb.  (N.  Y.) 
188,  it  was  held  "the  duties  owed 
by  an  innkeeper  as  such  are  due 
only  to  his  guests.  To  constitute 
one  a  guest  it  is  not  necessary 
that  he  be  at  the  inn  in  person; 
it  is  enough  that  his  property  be 
there  in  the  charge  of  his  wife  or 
sei'vant,  or  agent  who  is  there  in 
his  employment,  or  as  a  member 
of  his  family;  but  they  must  be 
there  in  such  a  way  that  the  law 


§  339.]  GUESTS.  331 

where  the  property  intrusted  to  an  agent  is  lost.  None  of  the 
cases  hold  that  in  the  former  case  the  innkeeper  would  be  sub- 
ject to  extraordinary  liability.^  The  rule,  however,  seems  to  be 
well  settled  that  if  the  property  left  with  the  innkeeper  for  safe- 
keeping is  inanimate  property  and  the  person  leaving  it  is  not  a 
guest,  that  is,  a  person  at  the  hotel  receiving  entertainment,  the 
innkeeper  is  not  liable  for  its  loss  except  as  he  may  be  liable  aS 
an  ordinary  bailee. 

Leaving  a  horse  and  vehicle  with  which  one  is  traveling  at  an 
inn  has  been  held  to  constitute  the  owner  a  guest.  But  it  seems 
that  this  was  more  generally  the  rule  in  times  when  persons  trav- 
eled through  the  country  by  their  own  conveyance  than  it  is  at 
the  present  time.  This  rule  will  be  found  to  be  laid  down  more 
generally  in  the  early  English  cases  and  in  some  of  the  earlier 
cases  in  this  country.  As,  for  example,  in  the  case  of  Mason  v. 
Thompson,  9  Pick.  280,  the  traveler  never  went  to  the  inn,  but 
stopped  as  a  visitor  with  a  friend  and  sent  her  horse  and  car- 
riage to  the  inn.  After  four  days  she  sent  for  the  property  and 
found  that  a  part  of  it  had  been  stolen,  but  still  the  innkeeper 
was  held  liable.'' 

§  339.  The  furnishing  of  what  accommodations  necessary. — 
It  seems  that  one  may  become  a  guest  although  he  does  not  re- 
ceive or  obtain  all  of  the  accommodations  that  the  inn  usually 
furnishes.  As,  for  example,  one  may  be  entitled  to  all  the  privi- 
leges of  a  guest,  and  render  the  innkeeper  liable  as  an  innkeeper, 
who  only  obtains  lodgings  and  takes  his  meals  at  some  other 
place,  or  where  he  obtains  meals  and  does  not  have  lodging  at 
the  inn.  If  in  such  case  he  receives  a  portion  of  the  accommo- 
dations as  a  transient  he  may  be  in  all  respects  considered  as  a 
guest.  In  the  case  of  Lynar  v.  Mossope,'^^  the  plaintiff  went 
from  a  train  on  which  he  arrived  to  the  defendant's  hotel  taking 

will    imply    the    property,    while  Ont.    App.    63;    Strauss    v.    Hotel, 

there,  to  be  in  his  possession  and  etc.  Co.,  12  Q.  B.  D.  27;    Toub  v. 

not  in  the  possession  of  the  per-  Schmidt,  60  Hun  (N.  Y.),  409. 

son  who  is   there   with   it  as   his  »  McDaniels  v.  Robinson,  26  Vt. 

bailee."  316,   62  Am.  Dec.   574;    Russell  v. 

8  Coykendall  v.  Eaton,  55  Barb.  Fagan,  7  Houst.   (Del.)   382;   York 

(N.  Y.)  188.     Mutually  opposed  to  v.  Grindstone,  1  Salk.  388;  2  Lord 

this  case  is  the  case  of  Mason  v.  Raymond,   866;    Walker  v.  Sharp, 

Thompson,    9    Pick.    (Mass.)    280.  31  U.  C.  Q.  B.  340. 

McDaniels  v.  Robinson,  28  Vt.  387,  lo  36  U.  C.  Q.  B.  230. 
67  Am.  Dec.  720;  Palin  v.  Reid,  10 


332  INNKEEPERS  AND   BOARDING-HOUSE  KEEPERS,         [§    340. 

with  him  his  baggage.  He  applied  to  the  clerk  of  the  hotel  for  a 
room,  which  he  occupied  for  the  purpose  of  dressing  and  making 
his  toilet  before  visiting  a  friend.  During  the  time  there  was  sent 
to  him  hot  water  with  which  to  shave.  Occupying  the  room  only 
for  a  short  time,  he  left  his  baggage  in  the  room  and  went  to  his 
friend.  It  was  held  that  he  was  a  guest  during  the  time  he  was 
using  the  room  for  the  purpose  of  dressing.  Hotels  that  are 
kept  on  the  European  plan,  where  guests  have  no  other  accom- 
modations except  the  accommodations  of  the  rooms,  are  held  to 
be  subject  to  the  law  of  innkeepers,  and  persons  so  occupying 
the  rooms  are  guests." 

§  340.  Mere  visitors. — Persons  who  merely  visit  the  inn  or 
hotel  for  the  purpose  of  meeting  friends,  or  dining  with  them, 
are  not  guests  of  the  hotel ;  they  may  be  transients,  but  they  are 
not  there  for  the  purpose  of  obtaining  the  accommodations  that 
the  hotel  usually  and  generally  gives  to  its  patrons.  They  are 
really  guests  of  the  person  whom  they  visit,  and  not  guests  of 
the  inn.  In  GastenJiofer  v.  Clair  ^-  the  plaintiff  claimed  to  have 
become  a  guest  by  reason  of  ordering  and  taking  dinner  while 
waiting  for  his  uncle  to  arrive.  The  court  say  this  put  him  in 
no  different  position  from  that  he  would  have  occupied  had  he 
sat  down  with  the  uncle,  as  he  had  been  invited  to  do.  He  was 
there  upon  the  invitation  of  that  gentleman,  and  with  no  intent 
to  sojourn  at  the  hotel  as  a  guest  for  even  the  briefest  period. 

It  seems  that  the  question  is  decided  upon  the  motive  with 
which  one  visits  the  inn,  whether  it  is  to  use  it  for  a  very  brief 
period  or  for  the  most  trifling  purpose  as  a  public  house.  And 
it  cannot  be  said  that  where  one  visits  the  hotel  merely  to  call 
upon  or  visit  a  guest  at  the  place  and  to  incidentally  enjoy  the 
hospitality  of  the  house,  it  was  his  intention  to  become  a  guest. 
He  no  more  becomes  a  guest  than  he  would  if  using  the  place  by 
sitting  in  the  parlors,  or  using  the  reading  room  or  writing  room, 
or  visiting  with  companions  about  the  office  or  sitting  rooms.    In 

iiBurnstein  v.   Sweeney,   33   N.  v.    Casler,    17   Hun    (N.    Y.),    126; 

Y.  Sup.  Ct.  271;  Bullock  v.  Adair,  Carter    v.    Hobbs,    12    Mich.    52. 

63  111.  App.  30.     "His  taking  food  Judge    Christiancy    in    rendering 

without  lodging  constitutes  one  a  the    opinion    said:    "The    plaintiff 

guest."     Read  v.   Amidon,   41  Vt.  was  no  more  the  guest  of  the  inn 

15,  98  Am.  Dec.   560;    Orchard  v.  than  a  person  residing  across  the 

Bush,  2  Q.  B.  284,  78  L.  T,  (N.  S.)  street  and   attending  the   ball  on 

577.     "One  at  an  inn  merely  for  the  same  occasion." 
the   purpose   of   attending   a   ball  12  10  Daly,  265. 

"was  held  not  to  be  a  guest."  Fitch 


§  343.]  GUESTS.  333 

such  case  it  cannot  be  said  that  there  is  any  intention  upon  the 
part  of  the  visitor  to  become  a  guest  at  the  inn,  and  there  is  no 
consideration  or  benefit  derived  by  the  innkeeper  and  no  under- 
standing that  the  person  is  a  patron  of  the  place.^^ 

§  341.  The  length  of  time  one  remains,  immaterial. — The 
mere  fact  that  one  remains  at  the  inn  a  long  time  or  for  only  a 
short  time  is  not  of  itself  suflEicient  to  determine  the  question  as 
to  whether  he  is  a  boarder  or  a  guest.  It  is  a  question  that  must 
be  determined,  as  we  have  said,  from  the  fact  as  to  whether  he  is 
a  transient  or  whether  he  has  settled  down  at  the  place  intending 
to  remain  and  become  settled  in  the  hotel  as  his  home  for  the 
time,  and  it  is  often  a  difficult  question  to  determine.^* 

§  342.  The  purpose  for  which  one  uses  the  inn. — The  guest 
must  use  the  inn  for  legitimate  purposes,  and  if  one  should  go  to 
the  inn  for  the  purpose  of  committing  a  crime,  and  is  engaged 
in  illegal  pursuits,  as,  for  example,  burglarizing  the  rooms,  he 
cannot  be  said  to  have  the  privileges  of  a  guest.  And  so  where 
one  goes  to  the  inn  for  immoral  purposes,  as  where  one  went  to 
a  hotel  with  a  disreputable  woman,  registered  with  her  as  hus- 
band and  wife,  was  assigned  a  room  and  delivered  some  money 
to  the  clerk,  who  absconded  therewith,  it  was  held  that  he  was 
not  a  guest  and  could  not  recover  the  money  from  the  inn- 
keeper.^^ 

§  343.  Who  must  the  innkeeper  receive  as  guests. — The  inn- 
keeper may  be  said  to  be  a  quasi-jiuhlie  servant,  keeping  a  pub- 
lic house  where  any  one,  with  but  few  exceptions,  has  a  right,  on 
complying  with  certain  regulations,  to  go  and  be  received,  and 
find  the  rest  and  entertainment  usually  furnished  by  the  keeper 
of  the  inn.  So  it  may  be  said  that  as  a  general  rule  an  innkeeper 
is  bound  to  receive  and  entertain,  if  he  has  room  in  his  house, 
every  one  who  applies  to  him  for  entertainment  who  is  orderly 
and  law-abiding  and  tenders  the  price,  or  is  able  and  willing  to 
pay  the  price  of  his  entertainment.  In  Bowlin  v.  Lyo7i  ^^  the 
court  say:  "The  grounds  upon  which  these  restrictions  are  im- 

13  Bennett  v.  Melor,  5  Term  Rep.  puts  up  at  an  inn  for  a  lawful  pur- 

273.  pose     to     receive    its     customary 

i-t  See  notes,  post,  §  343.  lodging  and  entertainment,  and  not 

15  Curtis  V.  Murphy,  63  Wis.  4,  one   who  takes  a   room   solely  to 

53  Am.  Rep.  242.    The  court,  after  commit    an    offense    against    the 

stating  the  case,  reaches  the  fol-  laws  of  the  state."     See,  in  this 

lowing     conclusion:      "That     one  connection,    Suia   v.    Omel,    61   N. 

whose  status  is  a  guest  is  a  trav-  Y.  S.  659. 

eler    or    a    transient    comer    who  le  67  Iowa,  563. 


334  INNKEEPERS  AND   BOARDING-HOUSE  KEEPERS.         [§    343. 

posed  are,  that  persons  engaged  in  this  vocation  are  in  some 
sense  servants  of  the  public,  and  in  conducting  their  business 
they  exercise  a  privilege  conferred  upon  them  by  the  public,  and 
they  have  had  secured  to  them  by  the  law  certain  privileges  and 
rights  which  are  not  enjoyed  by  the  members  of  the  public  gen- 
erally." And  in  a  leading  English  case  ^^  it  is  said:  "The  inn- 
keeper is  not  to  select  his  guests;  he  has  no  right  to  say  to  one 
you  shall  come  in  to  my  inn,  and  to  another  you  shaD  not,  as 
every  one  coming  and  conducting  himself  in  a  proper  manner 
has  a  right  to  be  received ;  and  for  this  purpose  innkeepers  are  a 
sort  of  public  servant,  they  having  in  return  a  kind  of  privilege 
of  entertaining  travelers  and  supplying  them  with  what  they 
need.  The  innkeeper,  in  the  very  doing  of  his  business,  necessa- 
rily holds  himself  out  to  the  public  as  a  keeper  of  a  public  house, 
and  he  solicits  all  to  come  and  patronize  him  and  become  guests 
of  his  inn."  And  so  the  inn  from  time  immemorial  has  been 
considered  to  be  a  place  where  the  traveler,  or  any  person  de- 
siring the  accommodation  it  afforded,  may  go  and  be  cared  for  as 
a  guest,  and  the  keeper  of  the  inn  is  not  allowed  to  deny  the 
right  to  any  person  who  comes  who  is  suitable  and  able  and 
ready  and  willing  to  pay  for  the  entertainment  furnished.  In 
Markham  v.  Broivn'^^  it  is  said:  "An  innkeeper  holds  out  his 
house  as  a  public  place  to  which  travelers  may  resort,  and  of 

17  Rex  V.  Ivens,  7  Car.  &  P.  213-  In  Watson  v.  Cross,  2  Duv.  (Ky.) 
219;  Hawthorne  v.  Hammond,  1  147,  the  court  say:  "The  innkeeper 
Car.  &  K.  404-407.  "In  summing  was  legally  bound  to  receive  and 
up  this  case,  Parker,  B.,  said  entertain  all  guests  apparently  re- 
there  is  no  doubt  that  the  law  is  sponsible  and  of  good  conduct  who 
that  a  person  who  keeps  a  public  might  come  to  his  house,  and  if 
inn  is  bound  to  admit  all  persons  he  refused  to  do  so  he  was  liable 
who  apply  peaceably  to  be  ad-  alike  to  an  indictment  and  an  ac- 
mitted  as  guests."  Atwater  v.  tion  by  the  party  aggrieved;  and 
Sawyer,  76  Me.  538.  When  persons  the  mere  fact  of  infancy  would  not 
unobjectionable  enter  a  hotel  not  justify  him  in  any  such  refusal, 
as  guests  but  for  pleasure  or  Where  a  party  voluntarily  con- 
profit  to  be  derived  from  inter-  tracts  with  an  infant,  then  the  in- 
course  with  the  inmates  of  the  fant  may  avail  himself  of  his  legal 
house,  they  are  there  not  of  right  disability  and  avoid  the  contract, 
but  under  an  implied  license  that  if  not  for  necessaries;  but  to  apply 
the  proprietor  may  revoke.  State  the  principle  to  contracts  which 
v.  Steele,  106  N.  C.  766,  8  L.  R.  A.  are  compulsory  on  the  side  of  the 
516,  where  is  discussed  the  ques-  other  contracting  party  would  be 
tion  and  authorities  cited.  to  make  the  law  an  instrument  of 

18  8  N.  H.  523-528, — Am.  Dec.  209.  oppression.     It  would  be   a  legal 


§  344.]  GUESTS.  335 

course  surrenders  some  of  the  rights  which  he  would  otherwise 
have  over  it;  holding  it  out  as  a  place  of  accommodal ion  for 
travelers,  he  cannot  prohibit  persons  who  come  under  that  char- 
acter, in  a  proper  manner  and  at  a  suitable  time,  from  entering, 
so  long  as  he  has  the  means  of  accommodation  for  them." 

§  344.  Limitations. — To  the  rule  which  requires  the  innkeeper 
to  receive  all  who  apply  to  him  for  entertainment,  who  are  will- 
ing and  able  to  pay  the  price,  there  are  certain  limitations ;  and 
these  limitations  are  not  alone  for  the  advantage  of  the  inn- 
keeper, but  they  are  required  as  well  for  the  comfort  and  safety 
of  the  guests,  and  therefore  it  is  not  only  the  privilege  of  the 
inn-keeper  to  take  advantage  of  these  limitations,  but  it  becomes 
his  duty  to  do  so,  otherwise  he  might  become  liable  to  the  guests 
of  his  inn  in  an  action  for  damages.  These  limitations  have  al- 
ready been  foreshadowed,  and  perhaps  more  than  indicated  by 
what  has  been  said  upon  the  subject  as  to  who  the  innkeeper 
must  receive.  Generally,  they  may  be  grouped  under  three 
heads : 

1st.  The  innkeeper  may  refuse  to  receive  one  as  a  guest  if 
unable  to  do  so  on  account  of  his  house,  or  inn,  being  filled  and 
there  is  no  further  accommodations. 

2d.  He  may  refuse  to  receive  disorderly  persons,  and  if  such 
a  person  has  been  received,  or,  if  after  having  been  received,  he 
becomes  disorderly,  the  innkeeper  may  require  him  to  leave  the 
house. 

3d.  He  may  refuse  to  receive  persons  who  are  infected  with 
contagious  diseases. 

(1)  As  to  the  first  limitation — refusing  to  receive  a  guest  on 
account  of  the  house  being  filled, — in  almost  every  case  it  is  not 
difficult  to  understand  that  these  limitations  could  be  taken  ad- 
vantage of  by  the  innkeeper;  but  what  would  be  his  duty  in  ex- 
treme cases,  or  to  what  extent  he  would  be  bound  to  crowd  the 
capacity  of  the  house,  is  difficult  to  decide.  As,  for  example,  in 
case  of  severe  storms,  or  in  case  of  large  crowds  that  have  been 
gathered  to  the  town  or  city  where  the  hotel  or  inn  is  situated, 
what  is  the  ability  of  the  person  turned  away  to  obtain  a  place 

absurdity    to    compel    a    man    to  keeper  is  liable,  at  common  law, 

make  a  contract  and  at  the  same  to  one  whom  he  refuses  the  priv- 

time  permit  the  other  party,  who  ileges    of    a    guest.      Cornell    v. 

is    the    instrument    of    such    com-  Huber,  92  N.  Y.  S.  434. 
pulsion,    to    avoid    it."      An    inn- 


336  INNKEEPERS  AND   BOARDING-HOUSE  KEEPERS,  [§    3-44. 

for  lodging  and  entertainment?  the  physical  condition  of  the 
person  applying? — all  these  questions  would  seem  to  enter  into 
the  matter  of  deciding  correctly  the  rights  and  liabilities  of  the 
innkeeper  to  turn  away  a  person  applying  at  his  inn  for  shelter 
or  food.  No  doubt  the  rule  would  be  decided  by  the  question  of 
reasonableness  under  all  the  circumstances,  coupled  with  the 
lack,  of  course,  of  any  malice  or  design  upon  the  part  of  the  inn- 
keeper. 

(2)  As  to  the  second  exception,  the  decision  of  the  innkeeper 
cannot  be  based  entirely  upon  his  own  rights  and  privileges,  but 
he  is  bound  to  look  after  the  care,  comfort  and  safety  of  those 
who  are  guests  at  the  inn.  He  is  under  obligation  to  those  per- 
sons who  have  already  entered  the  inn  or  the  hotel,  paid  for  their 
entertainment  and  are  entitled  to  have  furnished  to  them  not 
only  shelter  and  food,  but  also  the  privilege  of  enjoying  the 
comforts  usually  furnished  to  guests  of  the  place.  The  guest  is 
not  legally  called  upon  to  put  up  with  the  annoyance  of  drunken, 
indecent  and  vulgar  associates  who  are  carrying  on  their  disor- 
derly practices  to  the  extent  of  making  his  stay  disagreeable  and 
unbearable.  On  the  contrary,  he  may  call  upon  the  innkeeper 
to  turn  away  such  persons  unless  they  desist  from  such  practices.' 
And  so  where  a  guest  is  assaulted  by  a  drunken  person  and  suf- 
fers by  reason  of  such  disorderly  treatment,  or  where  he  has  suf- 
fered from  loss  of  property  which  has  been  stolen  from  him  while 
in  the  inn,  or  from  any  other  disorderly  conduct  on  the  part  of 
persons  who  are  accepted  as  guests,  he  would  no  doubt  have  an 
action  against  the  innkeeper  for  the  damage  he  might  sustain.^^^ 

(3)  The  third  limitation  mentioned,  namely,  the  refusal  to  re- 
ceive guests  who  are  infected  with  contagious  diseases,  is  based 
not  only  upon  the  privilege  of  the  innkeeper  to  reject  such  per- 
sons, and  upon  the  right  which  the  guest  has  to  be  entertained 
without  danger  of  being  infected  with  contagious  diseases,  but 
it  also  rests  upon  public  policy.  The  inn,  as  we  have  seen,  is  a 
public  house  kept  for  the  entertainment  and  comfort  of  the  pub- 
lic. It  could  hardly  be  said  that  under  such  circumstances  the 
law  would  permit  an  innkeeper  to  receive  persons  into  such  a 
public  place  who  would  inoculate  or  infect  guests  who  come  to 
the  place  expecting  to  be  entertained  and  protected  as  guests. 
In  Gilbert  v.  Hoffman  "  the  plaintiff  claimed  damages  of  the  de- 
fendants, innkeepers,  on  account  of  having  been  wrongfully  ex- 

18a  See  post,  §  349.  lo  66  Iowa,  205. 


§  345.]  GUESTS.  337 

posed  to  the  small-pox  at  their  hotel,  whereby  the  plaintiff  be- 
came sick,  and  was  removed  to  a  pest-house,  where  she  suffered 
great  bodily  pain  and  mental  anguish  and  was  permanently  dis- 
figured. The  court  say:  "By  keeping  their  hotel  open  for  busi- 
ness they  (the  innkeepers)  in  effect  represented  to  all  travelers 
that  it  was  a  reasonably  safe  place  at  which  to  stop ;  and  they  are 
hardly  in  a  position  now  to  insist  that  one  who  accepted  and 
acted  on  this  representation  and  was  injured  because  of  its  un- 
truth shall  be  precluded  from  recovering  against  them  for  the 
injury  on  the  ground  that  she  might  by  further  inquiry  have 
learned  its  falsity." 

It  is  perhaps  because  of  these  limitations  that  it  necessarily 
follows  that  an  innkeeper  may  make  reasonable  rules  and  regu- 
lations which  he  may  require  the  guests  to  observe,  and,  if  they 
refuse  to  comply  with  these  reasonable  rules  and  regulations, 
may  go  to  the  extent  of  ejecting  them  from  the  house.  But 
in  the  carrying  out  of  the  rules  and  regulations  thus  made,  and 
in  fact  in  taking  advantage  of  the  limitations  which  have  been 
discussed,  the  innkeeper  must  exercise  good  judgment  and  rea- 
sonable care,  or  he  may  become  liable  for  his  treatment  of  or 
actions  toward  the  guests  in  these  respects. 

§  345.  Liability  for  refusing  to  receive  a  guest. — Having 
discussed  the  general  rules  which  define  the  duty  of  the  inn- 
keeper to  receive  all  who  may  apply  and  his  right  to  exercise  the 
limitations  which  have  also  been  mentioned,  we  have  now  to  no- 
tice what  his  liability  may  be  in  refusing  to  receive  a  guest 
where  legally  and  of  right  it  is  his  duty  to  receive  such  person. 
It  would  be  difficult,  indeed,  to  classify  the  numerous  cases 
which  present  themselves  in  contemplating  this  branch  of  the 
subject.  It  should  be  borne  in  mind  that  the  rule  which  governs 
in  like  cases  is,  that  where  there  is  a  duty  imposed  by  law  upon 
a  person,  with  which  he  neglects  or  refuses  to  comply,  and  his 
neglect  or  refusal  results  in  damage  to  another,  he  is  liable  to 
answer  for  such  damage.  Just  how  far  this  rule,  however,  can 
be  carried  has  been  somewhat  interesting  both  to  the  law  writers 
and  to  the  courts.  The  supreme  court  of  Pennsylvania  in  Mc- 
Eugh  V.  Scldosser  et  al.,^'^  held  that  an  inn-keeper  was  liable  for 

20 159  Pa.  St.  480.     This  case  is  tlie   present    writing.     It   appears 

an    unusual    and    interesting    one  that  Mary  McHugh,   the  plaintiff, 

and  settles  the  principle  discussed  brought  suit  to   recover  damages 

in    the    text,    and    perhaps    is    the  for  the  loss  of  her  husband,  alleg- 

only  case  that  could  be  cited  at  ing  that  his  death  was  caused  by 


338 


INNKEEPERS  AND   BOAEDING-HOUSE   KEEPERS.         [§    345. 


the  death  of  a  person  who,  while  sick,  was  b}''  the  innkeeper 
driven  out  into  a  storm  without  adequate  covering-,  and  left  for 
the  space  of  an  hour  in  a  stream  of  melting  ice  and  snow,  where 
he  fell  down  from  inability  to  stand  on  his  feet,  holding  that 
it  was  reasonable  to  suppose  that  death  might  follow  such  sud- 
den exposure  in  his  condition.  The  courts  have  gone  further 
than  this  in  their  rulings,  and  it  has  been  held  that  an  innkeeper 
might  be  liable  to  an  indictment  for  turning  away  a  guest  from 
his  inn  when  he  had  room  and  could  have  received  him,  and 
on  account  of  it  the  guest  suffered  great  bodily  harm.  In  the 
case  of  Bex  v.  Ivens  ^^  it  was  held  that  an  indictment  lies  against 


the  improper  conduct  of  the  inn- 
keepers.     McHugh,  her  deceased 
husband,  came  to  the  hotel  of  the 
defendants    late    at    night,    regis- 
tered,  was   assigned   to   and   paid 
for  a  room  lor  the  night,  and  re- 
tired.    On   the   following  day   he 
complained    of   being   ill    and    re- 
mained most  of  two  days  in  bed; 
a  physician  was  called,  who  pre- 
scribed for  him.     During  the  day 
he    obtained    several    drinks,    and 
during    the    forenoon    of    Monday 
he  seemed  bewildered,  walked  the 
halls   on   the    floor   on   which   his 
room  was  situated,  and  about  the 
middle  of  the  day  the  housekeeper 
reported  to  the  proprietor  that  he 
was  out  of  his  room  and  was  sit- 
ing, partially  dressed,  on  the  side 
of  the  bed  in  another  room.     The 
proprietor  and  his  porter  started 
in    search    of    McHugh,    and    the 
proprietor    seemed    to    have    ex- 
hibited some  excitement  or  anger. 
When  found,  and  when  the  porter 
was  leading  him  to  his  room,  the 
proprietor  said  that  he  could  not 
stay  any  longer,  and  on  reaching 
the  room  the  porter  put  his  coat, 
hat  and  shoes  on  him,  led  him  to 
the  freight  elevator,   put  him  on 
it  and  let  him  down  to  the  ground 
floor.      He    took    him    through    a 
back  room  into  the  alley  and  led 


him  into  the  alley.  Rain  was  fall- 
ing and  the  day  was  cold.  A 
stream  of  water  and  melting 
snow  was  running  down  the  alley. 
McHugh  was  without  overshoes, 
overcoat,  or  wraps  of  any  de- 
scription. When  the  porter  was 
taking  him  down  the  alley  he  fell 
to  the  pavement.  Soon  after  he 
was  discovered,  having  raised  up, 
leaning  heavily  against  the  wall 
of  the  hotel,  but  apparently  un- 
able to  step,  the  porter  behind 
him  urging  him  forward.  An  offi- 
cer found  them  in  this  situation, 
and  at  once  sent  for  an  ambu- 
lance; during  the  time,  however, 
that  he  was  going  after  the  am- 
bulance, the  sick  man  laid  in  the 
snow  and  water.  He  was  taken  to 
the  hospital,  but  when  they  ar- 
rived all  signs  of  life  had  disap- 
peared. In  such  case  it  was  held 
that  the  defendants,  the  innkeep- 
ers, were  liable  in  damages. 

217  Car.  &  P.  578. 

"Godson,  for  the  defendant: 
Does  your  lordship  think  that  an 
indictment  lies  against  an  inn- 
keeper for  refusing  to  receive  a 
guest?  I  know  that  an  action  may 
be  brought  against  him  if  he  does 
so;  and  such  an  action  was 
brought  against  an  innkeeper  at 
Lancaster  a  few  years  ago.    This 


§  345.] 


GUESTS. 


339 


fin  innkeeper  who  refuses  to  receive  a  ^est,  lie  having  room  in 
his  house  at  the  time ;  and  that  it  is  not  necessary  for  the  guest 
to  tender  the  price  of  his  entertainment  if  his  rejection  is  not 
on  that  ground.     And  it  is  no  defense  for  the  innkeeper  that 


is  only,  at  most,  a  private  in  jury- 
to  Mr.  Williams,  and  not  an  of- 
fense against  the  public. 

"Coleridge,  J.:  There  can  be  no 
doubt  that  this  indictment  is  sus- 
tainable in  point  of  law.  Mr.  Ser- 
jeant Hawkins  distinctly  lays  it 
down  that  an  indictment  lies  for 
this  offense.     .     .     . 

"Coleridge,  J.  (in  summing  up) : 
The  facts  in  this  case  do  not  ap- 
pear to  be  much  in  dispute;  and 
though  I  do  not  recollect  to  have 
ever  heard  of  such  an  indictment 
having  been  tried  before,  the  law 
applicable  to  this  case  is  this: 
that  an  indictment  lies  against  an 
innkeeper  who  refuses  to  receive 
a  guest,  he  having  at  the  time 
room  in  his  house;  and  either  the 
price  of  the  guest's  entertainment 
being  tendered  to  him,  or  such 
circumstances  occurring  as  will 
dispense  with  that  tender.  This 
law  is  founded  in  good  sense. 
The  innkeeper  is  not  to  select  his 
guests.  He  has  no  right  to  say 
to  one,  you  shall  come  into  my 
inn,  and  to  another  you  shall  not, 
as  every  one  coming  and  conduct- 
ing himself  in  a  proper  manner 
has  a  right  to  be  received;  and 
for  this  purpose  innkeepers  are  a 
sort  of  public  servants,  they  hav- 
ing in  return  a  kind  of  privilege 
of  entertaining  travelers,  and  sup- 
plying them  with  what  they  want. 
It  is  said  in  the  present  case  that 
Mr.  Williams,  the  prosecutor,  con- 
ducted himself  improperly,  and 
therefore  ought  not  to  have  been 
admitted  into  the  house  of  the  de- 
fendant. It  a  person  came  to  an 
inn  drunk,   or  behaved  in  an  in- 


decent or  improper  manner,  I  am 
of  opinion  that  the  innkeeper  is 
not  bound  to  receive  him.  .  .  . 
Ic  is  next  said  that  he  came  to 
the  inn  at  a  late  hour  of  the  night, 
when  probably  the  family  were 
gone  to  bed.  Have  we  not  all 
knocked  at  inn  doors  at  late  hours 
of  the  night,  and  after  the  family 
have  retired  to  rest,  not  for  the 
purpose  of  annoyance,  but  to  get 
the  people  up?  In  this  case  it 
further  appears  that  the  wife  of 
the  defendant  has  a  conversation 
with  the  prosecutor,  in  which  she 
insists  in  knowing  his  name  and 
abode.  I  think  that  an  innkeeper 
has  no  right  to  insist  in  knowing 
those  particulars;  and  certainly 
you  and  I  would  think  an  inn- 
keeper very  impertinent  who 
asked  either  the  one  or  the  other 
of  any  of  us.  However,  the  prose- 
cutor gives  his  name  and  resi- 
dence; and  supposing  that  he  did 
add  the  words  'and  be  damned  to 
you,'  is  that  a  sufficient  reason 
for  keeping  a  man  out  of  an  inn 
who  has  traveled  till  midnight? 
I  think  that  the  prosecutor  was 
not  guilty  of  such  misconduct  as 
would  entitle  the  defendant  to 
shut  him  out  of  his  house.  It  has 
been  strongly  objected  against  the 
prosecutor  by  Mr.  Godson,  that  he 
had  been  traveling  on  a  Sunday. 
To  make  that  argument  of  no 
avail,  it  must  be  contended  that 
traveling  on  a  Sunday  is  illegal. 
It  is  not  so,  although  it  is  what 
ought  to  be  avoided  whenever  it 
can  be.  .  .  .  With  respect  to 
the  non-tender  of  money  by  the 
prosecutor,  it  is  now  a  custom  so 


340  INNKEEPERS  AND   BOARDING-HOUSE  KEEPERS.  [§    347. 

the  guest  was  traveling  on  Sunday,  and  arrived  at  the  inn  after 
the  innkeeper's  family  had  gone  to  bed;  nor  is  it  any  defense 
that  the  guest  refused  to  tell  his  name  and  abode,  as  the  inn- 
keeper had  no  right  to  insist  upon  knowing  these  particulars; 
but  if  the  guest  come  to  the  inn  drunk,  or  behave  in  an  in- 
decent or  improper  manner,  the  innkeeper  is  not  bound  to  re- 
ceive him. 

§  346.  May  refuse  to  receive  or  to  entertain,  when. — From 
what  has  already  been  said,  it  follows  that  an  innkeeper  will  be 
protected  in  refusing  to  admit  certain  persons  into  his  inn,  and^ 
if  they  have  once  been  admitted,  in  turning  them  out;  or,  in 
some  cases,  taking  them  to  a  place  where  they  can  be  suitably 
and  properly  eared  for;  and  this  in  all  cases  may  not  be  con- 
sidered simply  as  the  right  or  privilege  of  the  innkeeper,  but 
his  duty  —  a  duty  he  owes  to  the  other  guests  of  his  house,  to 
whom  he  would  be  liable  if  he  should  refuse  to  so  act.  Some 
examples  are  noted  in  the  following  paragraphs.  It  would, 
however,  be  impossible  to  discuss  every  case  which  would  fall 
within  what  has  just  been  mentioned. 

§  347.  When  a  guest  is  taken  ill  with  contagious  disease. — 
We  have  already  noticed  that  the  innkeeper  would  be  liable 
to  his  guests  if  he  received  them  within  his  inn  where  at  the 
same  time  he  was  harboring  a  person  afflicted  with  a  contagious 
disease,  without  giving  notice  to  the  guests  admitted.  It  there- 
fore follows  that  he  would  have  the  right  to  rid  his  inn  of 
such  a  person  in  order  that  he  might  carry  on  his  business  as  an 
innkeeper.  "Where  the  person,  however,  has  become  ill  with  the 
contagious  disease  after  having  been  admitted  as  a  guest,  the 

universal  with  innkeepers  to  trust  into  the  inns?    I  should  say  when 

that  a  person  will  pay  before  he  they    are    benighted,    and    when, 

leaves  an  inn,  that  it  cannot  be  from   any   casualty,   or   from   the 

necessary   for  a   guest  to  tender  badness  of  the  roads,  they  arrive 

money  before  he  goes  into  an  inn.  at  an  inn  at  a  very  late  hour.    In- 

.     .     .     And   the  opinion   which  I  deed,   in   former   times   when   the 

have  formed  is,  that  the  lateness  roads  were  much  worse,  and  were 

of  the  hour  is   no  excuse   to   the  much  infested  with  robbers,  a  late 

defendant  for  refusing  to  receive  hour  of  the  night  was  the   time, 

the  prosecutor  into  his  inn.    Why  of  all  others,  at  which  the  traveler 

are  inns  established?    For  the  re-  most  required  to  be  received  into 

ception  of  travelers,  who  are  often  an   inn.     I  think,   therefore,   that 

very   far   distant  from   their   own  if    the    traveler    conduct    himself 

homes.     Now,  at  what  time  is  it  properly,  the  innkeeper  is  bound 

most     essential      that      travelers  to   admit  him,   at  whatever  hour 

should    not    be    denied    admission  of  the  night  he  may  arrive." 


§  348.]  QUESTS.  341 

duty  of  the  innkeeper  toward  him,  by  way  of  removing  him  from 
the  inn,  is  a  very  particular  one.  It  has  been  held  that  he  has 
the  right  to  remove  him,  after  notice,  in  a  careful  and  becoming 
manner  and  at  an  appropriate  hour,  to  a  hospital  or  other  place 
of  safety,  provided  the  life  of  the  guest  is  not  impaired  there- 
\)y22  rpj^^g  right,  however,  to  remove  a  guest  would  not  apply 
to  one  who  was  afflicted  with  other  illness  than  that  which  is 
contagious,  even  though  the  illness  was  a  disturbance  and  an  an- 
noyance to  the  other  guests.  The  innkeeper  in  such  case  would 
not  be  justified  in  removing  him  except  in  a  manner  suited  to 
his  condition.^^ 

§  348.  Disorderly  conduct. — For  disorderly  conduct  the  inn- 
keeper may  refuse  to  receive  a  guest,  and  it  is  his  duty  to  not 
only  refuse  to  receive  him  but  even  to  expel  him  from  his  inn, 
if  after  having  been  received  he  becomes  disorderly.  This 
would  apply  to  drunken  and  disorderly  persons,  as  already  no- 
ticed, and  it  has  been  held  that  it  also  applies  to  those  who  are 
in  such  a  filthy  condition  as  to  annoy  the  guests  of  the  place, 
for  filthiness  of  person  is  disorderly.^*  But  mere  apprehension 
of  insult  is  not  sufficient  reason  for  refusal.^^  An  English  case, 
however,  has  gone  so  far  as  to  hold  that  a  guest  might  be  re- 
fused entertainment  where  his  conduct  was  offensive  to  the  other 
guests,  in  that  he  had  been  in  the  habit  of  coming  into  the  inn 
with  several  large  dogs  which  were  annoying  to  those  stopping 
at  the  inn,  and  where  he  persisted  in  bringing  these  animals  into 
the  inn  notwithstanding  the  objections  of  the  innkeeper.'^  From 
these  examples  and  cases  cited  it  will  be  noticed  that  there  must 
necessarily  rest  with  the  innkeeper  a  very  large  discretion  which 
he  is  required  to  exercise  with  reasonably  careful  judgment,  and 
that  each  case  must  necessarily  depend  upon  its  own  particu- 
lar facts.  It  would  be  difficult,  indeed,  to  lay  down  any  fixed, 
settled  rule  which  would  in  all  cases  determine  the  rights  and 
duties  of  the  innkeeper  in  receiving  guests  into  his  hotel,  and  in 
defining  and  stating  his  right  to  exclude  them  or  refuse  them 
further  entertainment. 

22  Levi  V.  Corey,  1  City  Ct.  (N.  25  Atwater   v.    Sawyer,    76    Me. 
Y.)   Sup.  57.  539. 

23  McHugh  V.  Schlosser,  159  Pa.  26  Reg.   v.   Reymer,   2   Q.   B.   D. 
St.  480,  39  Am.  St.  Rep.  699.  136. 

24  Marktiam  v.  Brown,  8  N.  H. 
523. 


CHAPTER  m. 

LIABILITIES. 


349.  Innkeeper's  liability. 

350.  The  extraordinary  liability 

on  grounds  of  public  pol- 
•     ley. 

351.  Liability  and  exceptions  an: 

alyzed. 

352.  Where    the    loss    is    occa- 

sioned by  accidental  fire 
and  not  in  any  way  the 
result  of  fault  or  neglect 
of  the  innkeeper. 

353.  By  act  of  God  or  the  pub- 

lic enemy. 

354.  By   irresistible   force   with- 

out negligence  or  fault 
on  the  part  of  the  inn- 
keeper. 

355.  Forcible  robbery,  riots,  etc. 

— Diligence. 

356.  If  the  loss  is  occasioned  by 

force  from  within. 

357.  By  reason  of  the  inherent 

nature   of  the  property. 

358.  Through    the    fault   of    the 

guest,  his  servants  or 
companions. 


§  359.  Reasonable    regulations    of 
the  inn. 

360.  For  what  property  liable. 

361.  Must  be  a  guest  of  the  inn 

and   the  property  within 
the  inn. 

362.  Infra  hospitium. 

363.  Lost  by  theft. 

364.  If  a  boarder,  not  a  guest. 

365.  Property    of    a    third 

person. 

366.  Liable    to    corporation    for 

loss  of  agent's  goods. 

367.  Exception — Goods   for   sale 

or  show. 

368.  Liability  for  the  safety  and 

protection  of  his  guests. 

369.  Defective   or  unsound   con- 

dition of  the  premises. 

370.  Injuries  from  fire. 

371.  Unsanitary  condition  of  the 

inn     and      unwholesome 
food. 

372.  Limiting  liability. 

373.  InnkeelDer    liable    as    ordi- 

nary bailee. 

374.  Liable  as  gratuitous  bailee. 


§  349.  Innkeeper's  liability. — The  innkeeper  belongs  to  the 
exceptional  class  of  bailments,  and  his  liability,  at  common  law, 
is  in  the  nature  of  an  insurer,  but  more  or  less  variable  depend- 
ing very  much  upon  the  facts  and  subject  matter  of  the  particu- 
lar case.  Generally  considered  the  subject  of  the  innkeepers 
liability  divides  itself  into  two  general  classes  or  subheads;  lia- 
bility for  the  loss  or  injury  of  the  property  of  the  guest,  and 
liability  for  the  safety  and  protection  of  the  guest  while  in  the 
inn,  each  resting  upon  a  somewhat  different  basis,  occasioned 
largely  by  reasons  of  the  duty  of  the  guest  to  exercise  a  reason- 


§  349/ 


LIABILITIES. 


343 


able  degree  of  diligence,  and  by  reason  of  the  control  of  the 
innkeeper  which  is  materially  different  as  applied  to  the  guest 
or  his  property.  "While  the  authorities  generally  accept  the  fact 
that  the  relation  is  that  of  an  exceptional  bailment  and  the 
liability  more  than  ordinary,  they  are  by  no  means  in  har- 
mony as  to  the  extent  of  the  exceptional  liability.  As  to  the 
liability  of  the  innkeeper  for  the  loss  or  injury  of  the  property 
of  the  guest,  it  has  been  said  that  there  are  three  distinct  classes 
of  holdings. 

(1)  "That  the  innkeeper  is  prima  facie  liable  for  the  loss  of 
goods  in  his  charge,  but  may  discharge  himself  by  showing  that 
the  goods  were  not  lost  by  his  negligence  or  default." 

(2)  "That  the  innkeeper  is  discharged  by  showing  that  the 
loss  or  injury  was  the  result  of  inevitable  accident  or  irresistible 
force,  though  not  amounting  to  what  the  law  denominates  the 
act  of  God,  and  not  attributable  to  the  public  enemy. ' ' 

(3)  "That  the  innkeeper  is  liable  unless  the  loss  was  caused 
by  the  act  of  God  or  the  public  enemy,  or  by  the  fault,  direct 
or  implied,  of  the  guest. ' '  ^ 


1  Sibley  v.  Aldrich,  33  N.  H. 
553-62.  In  this  case  tlie  court  has 
gathered  together  very  many  of 
the  leading  cases  upon  this  sub- 
ject at  the  time  of  its  decision. 
and  has  discussed  with  great  abil- 
ity the  English  rules  then  extant, 
citing  in  the  opinion  Dawson  v. 
Channey,  5  A.  &  B.  (N.  S.)  165, 
where  it  was  held  that  when  goods 
had  been  deposited  in  a  public 
inn  and  there  lost  or  injured,  the 
presumption  is  that  the  loss  or 
damage  was  caused  by  the  negli- 
gence of  the  innkeeper  or  his 
servants,  but  that  this  presump- 
tion may  be  rebutted,  and  if  the 
jury  find  in  favor  of  the  innkeeper 
as  to  negligence  he  is  entitled  to 
succeed  on  a  plea  of  not  guilty. 
And  in  Metcalf  v.  Hess,  14  111. 
129,  where  it  was  held  that  the 
innkeeper  might  discharge  him- 
self by  showing  that  the  loss  hap- 
pened without  any  default  on  his 


part.  In  Merrill  v.  Cleghorn,  23 
Vt.  177,  it  was  held  that  the  inn- 
keeper could  not  be  held  where 
the  property  was  lost  by  fire, 
occasioned  by  inevitable  or  su- 
perior force  and  without  any 
negligence  on  his  part.  And  in 
Kesten  v.  Hildebrand,  9  B.  Monr. 
72,  where  it  was  held  that  the  inn- 
keeper "is  not  liable  for  a  loss  by 
external  force  or  robbery,  or  if 
the  loss  occur  by  the  neglect  of 
the  guest  or  his  servants  or  com- 
panions." The  court  in  the  same 
case  collects  authorities  to  the 
point  that  the  innkeeper  cannot 
discharge  himself  by  showing  that 
the  loss  did  not  happen  by  his  de- 
fault, but  that  he  must  go  further 
and  show  that  it  was  caused  by 
the  default,  direct  or  implied,  of 
the  owner;  citing  2  Kent's  Com. 
574,  where  it  was  said:  "An  inn- 
keeper, like  a  common  carrier,  is 
an   insurer    of   the    goods   of   his 


344  INNKEEPERS  AND   BOARDING-HOUSE   KEEPERS.         [§    349. 

One  of  the  most  extreme  eases  in  this  country  and  holding  to 
the  most  extreme  doctrine  as  to  liability  is  that  of  Hulett  v. 
Swift,"  where  the  court  of  appeals  in  New  York  held  that  an 
innkeeper  is  an  insurer.  In  that  case  the  plaintiff's  servants 
put  up  at  the  defendant's  inn,  the  innkeeper  taking  charge  of 
and  stabling  the  plaintiff's  horse,  his  wagon  and  a  load  of  buck- 
skin goods.  The  plaintiff  in  the  court  below  obtained  judgment 
for  the  full  value  of  the  property  upon  the  ground  that  the  de- 
fendant innkeeper  was  an  insurer  of  the  property  of  his  guest 
placed  in  his  custody.  The  court  of  appeals  affirmed  the  case. 
Porter,  J.,  in  rendering  the  opinion  of  the  court  said:  "An 
innkeeper  is  responsible  for  the  safe-keeping  of  property  com- 
mitted to  his  custody  by  a  guest.  He  is  an  insurer  against  loss, 
unless  caused  by  the  negligence  or  fraud  of  the  guest,  or  by  the 
act  of  God  or  the  public  enemy.  This  liability  is  recognized  in 
the  common  law  as  existing  by  the  ancient  custom  of  the  realm, 
and  the  judges  in  Calye's  Case  treated  the  recital  in  the  special 
writ  for  its  enforcement  as  controlling  evidence  of  the  nature 
and  extent  of  the  obligation  imposed  by  law  upon  the  inn- 
keeper." The  court  in  discussing  the  liability  of  innkeepers 
puts  it  upon  the  ground  of  public  policy,  saying  that  it  had  its 
origin  in  considerations  of  public  policy;  that  it  was  essential 
to  the  interests  of  the  realm;  and  that  every  facility  should  be 
furnished  for  sl  curing  convenient  intercourse  between  different 
portions  of  the  kingdom;  holding  that  to  all  intents  and  pur- 
poses the  same  rules  of  liability  apply  to  innkeepers  that  apply 
to  common  carriers,  and  that  in  the  case  of  loss  either  the  inn- 
keeper or  the  guest  must  be  the  sufferer,  and  that  the  common 

guests  and  can  only  limit  his  lia-  rier."     Also  citing  Kent  v.  Shack- 

bility    by    express    agreement    or  ford,   2  B.   &  Aid.  803;    Mason  v. 

notice."     And  Richmond  v.  Smith,  Thompson,  9   Pick.   280;    Shaw  v. 

8  B.  &  C.  9,  where  Lord  Tender-  Berry,   31  Me.  478,   where  it  was 

den  says:  "It  is  clear  that  at  com-  held    that    to    discharge    an    inn- 

mon  law  when  a  traveler  brings  keeper  from  liability  for  the  loss 

goods    to   an   inn  the   landlord   is  of  the  goods  in  his  charge,  it  is 

responsible  for  them.     In  this  re-  not  sufficient  for  him  to  show  that 

spect  I  think  the  situation  of  the  the    loss    did    not    happen   by   his 

landlord  was  precisely  analogous  neglect    or    default,    but    that   he 

to   that   of    the    common    carrier.  must  go  further  and  show  that  it 

Bailey,  J.,  in  the  same  case  says:  happened  by  the  fault,   direct  or 

"It   appears   to   me   that   an   inn-  indirect,  of  the  owner, 
keeper's  liability  very  closely  re-  2  33  N.  Y.  571. 

sembles   that   of   a   common   car- 


§   349.]  LIABILITIES.  345 

law  furnished  the  solution  of  the  question  on  which  of  them  it 
should  properly  fall,  and  quotes  the  following :  "  In  Cross  v.  An- 
drews^ the  defendant,  if  he  keep  an  inn,  ought  at  his  peril  to 
keep  safely  his  guest's  goods;"  and  further  remarking  that  "he 
must  guard  them  against  the  incendiary,  the  burglar  and  the 
thief,  and  he  is  equally  bound  to  respond  for  their  loss,  whether 
caused  by  his  own  negligence  or  by  the  depredations  of  knaves 
and  marauders  within  or  without  the  curtilage;"  quoting  also  a 
long  list  of  New  York  authorities  that  uphold  this  doctrine ;  also 
authorities  from  some  of  the  other  states. 

It  may  be  said  that,  following  this  case,  the  legislature  of  the 
state  of  New  York  saw  fit  to  pass  a  law  modifying  the  liability 
of  the  innkeeper. 

The  supreme  court  of  Michigan  in  Cutler  v.  Bonney*  involv- 
ing nearly  the  same  state  of  facts,  took  a  different  and  more 
liberal  view  of  the  law,  and  in  the  opinion  discuss  the  case  of 
Hulett  V.  Swift.  In  the  Michigan  case,  plaintiff  brought  suit 
to  recover  the  value  of  a  certain  horse,  wagon  and  goods  de- 
stroyed by  fire  in  the  barn  of  the  defendant,  an  innkeeper.  It 
was  found  by  the  court  that  the  fire  was  not  caused  by  the  fault 
of  defendant  or  his  servants,  and  the  question  was  as  to  the  lia-' 
bility  of  the  innkeeper  to  respond  in  damages  for  the  loss  to 
the  guest.  Campbell,  J.,  rendered  the  opinion,  and  in  the  course 
of  it  used  these  words:  "In  order  to  hold  a  bailee  liable  for 
that  which  is  in  no  respect  to  be  imputed  either  to  his  own 
negligence,  or  to  that  of  persons  for  whom  he  is  responsible,  there 
should  be  found  clear  authority.  The  common  law  has  declared 
this  liability  against  one  class  of  bailees,  and  has  made  common 
carriers  responsible  for  all  losses  not  caused  by  the  public  ene- 
mies, or  some  casualty  in  no  way  arising  out  of  human  action. 
It  is  claimed  by  plaintiffs  that  in  this  respect  common  carriers 
and  innkeepers  stand  on  precisely  the  same  footing ;  and  it  is  not 

3  Croke's  Bliz.,  622.  In  the  Duer,  117  Grinnell  v.  Cook,  3  Hill, 
courts  of  New  York  it  has  been  488;  Piper  v.  Manny,  21  Wend, 
held  in  very  many  cases  that  the  282;  1  Pars,  on  Contracts,  623; 
inkeeper,  like  the  common  car-  Shaw  v.  Perry,  31  Me.  478;  Gilbert 
rier,  is  by  common  law  an  insurer.  v.  Aldrich,  33  N.  H.  533;  Berk- 
Purvis  V.  Coleman,  21  N.  Y.  Ill-  shire  Woolen  Co.  v.  Proctor,  7 
117;  Wells  v.  Steam  Navigation  Cush.  427;  Mason  v.  Thompson,  9 
Co.,  2  Comst.  204;  Gile  v.  Libbey,  Pick.  280. 
36  Barb.  70;  Ingelsby  v.  Wood,  36  430  Mich.  259. 
Barb.    458;    Taylor    v.    Monnot,    4 


346  INNKEEPERS  AND   BOARDING-HOUSE  KEEPERS.         [§    349. 

claimed  that  defendants  can  be  made  liable  in  the  present  case 
on  any  narrower  ground.  There  are  many  cases  in  which  it 
has  been  said  by  judges  that  the  liability  is  not  distinguishable. 
Most  of  these  have  been  collected  in  the  notes  of  Mr.  Holmes  to 
the  last  edition  of  Kent's  Commentaries.  2  Kent,  596.  But 
except  in  the  decisions  to  be  especially  referred  to  hereafter, 
there  is  nothing  in  the  facts  of  any  authority  which  we  have 
discovered  which  called  for  any  such  remark,  or  which  would 
justify  the  enforcement  of  a  liability  for  such  a  loss  as  the 
present.  With  one  or  two  exceptions  the  cases  referred  to  have 
arisen  from  thefts  or  unexplained  losses  of  property,  while  it 
was  within  the  legal  custody  or  protection  of  the  innkeeper. 
The  rule  actually  applied  in  all  these  cases  has  been  that  all 
such  losses  were  presumably  due  to  the  neglect  of  the  innkeeper. 
Generally,  and  perhaps  universally,  he  has  been  held  to  an 
absolute  responsibility  for  all  thefts  from  within,  or  unex- 
plained, whether  committed  by  guests,  servants  or  strangers. 
But  he  has  quite  as  uniformly  been  discharged  by  any  negli- 
gence of  the  guest  conducing  to  the  injury,  and  he  has  not  been 
held  for  acts  done  by  the  servants  of  guests,  or  by  those  whom 
they  have  admitted  into  their  rooms,  and  in  many,  cases  has 
been  held  discharged  where  the  guest  has  exercised  any  spe- 
cial control  over  his  property.  The  general  principle  seems 
to  be  that  the  innkeeper  guarantees  the  good  conduct  of  all  per- 
sons whom  he  admits  under  his  roof,  provided  his  guests  are 
themselves  guilty  of  no  negligence  to  forfeit  the  guaranty.  Be- 
yond this  we  have  found  no  decided  case  anywhere.  We  have 
found  no  decision  holding  innkeepers  liable  for  losses  by  purely 
accidental  casualties,  or  from  riots,  or  acts  of  force  from  with- 
out, such  as  have  been  from  the  beginning  excepted  by  the  text- 
writers.  These  writers,  or  at  least  such  of  them  as  are  of  recog- 
nized authority,  have  drawn  a  line  between  carriers  and  inn- 
keepers, resting  on  the  distinction  between  absolute  and  qualified 
responsibility.  And  none  of  the  accepted  writers  have  found 
any  authority  for  disregarding  this  distinction.  The  two  classes 
of  bailees  have  been  kept  carefully  separate.  .  .  .  The  com- 
mon law  has  in  some  things  been  modified  by  decisions,  but  it  is 
contrary  to  law  to  follow  dicta  made  in  cases  calling  for  no  de- 
parture from  the  old  law.  It  would  be  a  manifest  innovation  to 
create  a  liability  where  no  possible  default  exists,  and  to  sustain 
such  an  innovation  there  ought  to  be  both  reason  and  authority. 


§   350.]  LIABILITIES.  347 

"We  cannot  object  to  follow  settled  law  on  our  own  views  of  what 
policy  ought  to  make  it.  But  we  are  not  prepared  to  assume 
there  is  any  policy  which  will  compel  persons  who  are  in  no- 
wise in  fault  to  respond  in  damages,  where  the  law  is  not  clear 
against  them.  And  the  authorities  directly  in  point  on  losses 
by  fire  are  not  numerous,  and  do  not,  in  our  judgment,  call  for 
any  such  consequences.  The  doctrine  imposing  such  a  liability 
may  be  said  to  rest  entirely  on  what  was  said  by  Justice  Porter 
in  Hulett  v.  Swift,  33  N.  Y,  571,  In  that  case  the  subject  is 
discussed  at  some  length  and  with  much  ability.  But  no  foun- 
dation is  shown  there  for  the  doctrine  asserted,  beyond  remarks 
which  are  confessedly  opposed  to  the  text-books,  and  which  were 
foreign  to  what  was  actually  decided  in  the  cases  where  they 
are  found.  The  whole  opinion  of  the  learned  judge  is  open  ta 
the  same  criticism,  as  he  himself  declares  the  point  discussed  did 
not  really  arise,  inasmuch  as  no  proof  was  introduced  changing 
the  presumption  raised  by  law  against  the  defendant.  The 
opinion  was  not  unanimous,  and  the  dissent  of  Judge  Denio 
would  detract  much  from  its  force,  even  if  it  had  been  pertinent 
to  the  facts.  Opposed  to  this  is  the  case  of  Merrill  v.  Claghorn, 
23  Vt.  177,  in  which  Judge  Redfield,  delivering  the  opinion  of 
the  court,  reached  the  conclusion  that  where  there  was  no  negli- 
gence there  was  no  responsibility  for  loss  by  fire.  This  opinion 
is  an  able  one,  and  was  not  given  beyond  the  facts.  It  has  been 
both  approved  and  criticised,  but  no  occasion  has  heretofore 
arisen  to  consider  its  correctness  upon  similar  facts.  Vance 
V.  Throckmorton,  5  Bush  (Ky.),  42,  is  to  the  same  effect,  but 
there,  too,  the  decision  might  have  rested  on  other  grounds,  and 
its  authority  is  therefore  diminished.  We  regard  the  decision 
in  Vermont  as  reasonable,  and  as  within  the  fair  meaning  of  the 
common-law  rule." 

The  liability  of  the  innkeeper  for  personal  injuries  to  the  guest 
while  in  the  inn  is  discussed  in  a  subsequent  section.^ 

§  350.  The  extraordinary  liability  on  grounds  of  public  pol- 
icy.— It  was  upon  the  ground  of  public  policy  that  the  Romans 
declared  by  praator's  edict  that  if  ship-masters,  innkeepers  and 
stable-keepers  did  not  restore  what  they  had  received  to  keep 
safe,  he  would  give  judgment  against  them.  The  reason  as- 
signed for  this  edict  was  that  it  was  necessary  to  place  confi- 

spost,  §  368. 


348  INNKEEPERS  AND   BOARDING-HOUSE   KEEPERS.         [§    352. 

dence  in  such  persons  and  to  commit  the  custody  of  things  to 
them,  and  unless  the  rule  was  thus  established  an  opportunity 
would  be  afforded  to  them  to  combine  with  thieves  against  those 
who  trusted  them,  whereas  they  now  had  an  inducement  to  ab- 
stain from  such  combinations.  There  is  no  doubt  that  in  the 
case  of  innkeepers  public  policy  demands  a  very  high  degree  of 
diligence.  The  guest  who  is  a  transient  or  traveler  is  not  sup- 
posed to  know  of  the  surroundings  in  which  he  is  placed;  he 
puts  himself  entirely  in  the  hands  of  the  innkeeper  or  his  serv- 
ants; he  depends  upon  him  for  the  safe-keeping  of  himself  and 
his  property.  At  night  he  takes  the  room  that  is  assigned  him; 
he  sleeps  and  depends  upon  the  innkeeper  to  watch  over  him  and 
his  property;  and  because  of  this  utter  dependence  the  law 
says,  and  public  policy  demands,  that  the  innkeeper  shall  exer- 
cise an  extraordinary  degree  of  diligence  in  the  protection  of 
the  property  approaching  that  of  an  insurer,  and  in  protecting 
the  guest  from  injury  a  diligence  commensurate  with  reasonable 
care  for  his  safety  and  comfort.® 

§  351.  Liability  and  exceptions  analyzed. — From  what  has 
already  been  said,  and  from  the  authorities  examined,  it  may  be 
determined  that  the  common-law  liability  of  an  innkeeper  for 
the  property  of  his  guest  is  that  of  an  insurer,  modified,  by  the 
following  exceptions: 

(1)  "Where  the  loss  is  occasioned  by  accidental  fire,  and  is  not 
in  any  way  the  result  of  the  fault  or  neglect  of  the  innkeeper. 

(2)  By  the  act  of  God  or  the  public  enemy. 

(3)  By  irresistible  force,  without  negligence  or  fault  of  the 
innkeeper. 

(4)  By  reason  of  the  inherent  nature  of  the  property. 

(5)  Through  the  fault  of  the  guest,  his  servants  or  compan- 
ions. 

§  352.  (1)  Where  the  loss  is  occasioned  by  accidental  fire 
and  not  in  any  v^^ay  the  result  of  fault  or  neglect  of  the  inn- 
keeper.— The  authorities,  as  we  have  seen,  are  by  no  means 
harmonious  upon  this  question,  and  it  is  somewhat  difficult  to 
say  where  the  weight  of  authority  is.     Some  jurisdictions  have 

6  In   Crapo   v.    Rockwell,    94    N.  W.    373.      Submits    question,    was 

T.  S.  1122,  held  that  the  innkeeper  guest  guilty  of  contributory  neg- 

is  an  insurer  of  the  property  of  ligence.      Jefferson    Hotel    Co.    v. 

his    guest.      Oriental   Hotel   Ass'n  Warren,  63  C.  C.  A.  193,  128  Fed. 

V.   Foust   (Tex.   Civ.   App.),   86   S.  565. 


§    352.]  LIABILITIES.  349 

held  that  the  innkeeper  is  an  insurer  of  the  property  of  the 
guest  which  is  placed  in  his  hands  for  safe-keeping  during  the 
time  the  guest  remains  in  the  inn,  and  that  the  innkeeper  can 
only  be  excused  when  the  loss  of  such  property  is  occasioned  by 
the  act  of  God,  the  public  enemy  or  the  fault  of  the  guest.  There 
is,  however,  a  long  line  of  authority  holding  with  the  case  of 
Cutler  V.  Bonney,''  from  which  we  have  quoted,  that  where  the 
loss  was  the  result  of  an  accidental  fire  and  in  no  wise  attribut- 
able to  the  negligence  or  fault  of  the  innkeeper,  he  is  not  liable ; 
and  it  would  seem  that  the  tendency  of  the  courts  is  to  hold  to 
this  doctrine  and  to  enlarge  the  limitations  of  the  rule  fixing  the 
liability  of  the  innkeeper  rather  than  to  hold  to  the  severity  of 
it.  In  a  case  where  it  can  be  said  that  there  was  no  fault  or  negli- 
gence on  the  part  of  the  innkeeper,  that  the  loss  was  purely  and 
solely  attributable  to  accidental  fire,  to  hold  the  innkeeper  liable 
would  be  to  say  that,  for  the  fault  or  acts  of  other  persons  over 
whom  he  has  no  control  whatever,  he  must  answer  in  damages. 
It  would  seem  that  such  a  rule  would  have  no  foundation  in 
principle,  and  only  rests  in  arbitrary  and  unreasonable  dicta. 
It  can  hardly  be  said  that  it  is  demanded  by  that  rule  of  public 
policy  that  has  imposed  the  extraordinary  liability  upon  the  inn- 
keeper, for  it  is  not  the  result  of  any  fraud  or  collusion  on  hii^i 
part.  It  was  not  brought  about  in  order  that  he  might  gain  by 
it ;  he  is  entirely  without  fault ;  and  because  of  this  it  is  without 
the  reason  of  the  rule,  and  therefore  it  should  be  without  the 
rule.  The  more  correct  rule,  it  appears,  w^ould  be  that  the  inn- 
keeper is  bound  to  exercise  extraordinary  care, — care  that  would 
be  in  every  way  in  keeping  with  the  great  and  important  re- 
sponsibility devolving  upon  the  innkeeper,  having  in  view  the 
fact  that  the  guest  has  submitted  to  him  the  care  of  his  property, 
and  if  loss  occurs  the  innkeeper  must  suffer  unless  he  can  show- 
that  he  is  not  only  not  guilty  of  negligence,  but  that  he  has 
exercised  that  extraordinary  diligence  which  the  particular  case 
and  his  particular  business  demands.^ 

7  30  Mich.  259.  cause,  by  a  public  enemy,  by  the 

8  Cases  where  innl^eepers  are  negligence  of  the  owner,  or  by  the 
held  liable  when  loss  was  occa-  act  of  some  one  whom  he  has 
sioned  by  accidental  fire.  Pink-  brought  into  the  inn.  Hulett  v. 
erton  v.  Woodward,  33  Cal.  557;  Swift,  33  N.  Y.  571;  Shaw  v.  Berry, 
Hay  V.  Pacific  Imp.  Co.,  93  Cal.  31  Me.  478;  Richmond  v.  Smith, 
53,  held  liable  unless  occasioned  8  Barn.  &  Cres.  10;  Sibley  v.  Aid- 
by     an     irresistible     superhuman  rich,    33    N.    H.    553;     Mateer    v. 


350 


INNKEEPERS  AND   BOARDING-HOUSE   KEEPERS. 


[§  353. 


§  353.  (2)  By  act  of  God  or  the  public  enemy. — All  the  au- 
thorities concede  that  where  the  loss  occurred  by  reason  of  the 
act  of  God  or  the  public  enemy,  the  innkeeper  is  excused  from 
liability.     To  this  there  is  no  necessity  of  citing  authorities; 


Brown,  1  Cal.  228;  Manning  v. 
Wells,  9  Humph.  764;  Thickstone 
V.  Howard,  8  Blackf.  535;  Mason 
V.  Thompson,  9  Pick.  283;  Berk- 
shire Woolen  Mills  v.  Proctor,  7 
Cush.  427. 

Cases  holding  that  the  inn- 
keeper is  not  liable  where  the  loss 
is  not  occasioned  by  any  fault  or 
negligence  on  his  part:  Laird  v. 
Eichold,  10  Ind.  212,  71  Am.  Dec. 
323;  Baker  v.  Dessaner,  49  Ind. 
28;  Hulbert  v.  Hartman,  79  111. 
App.  289;  Johnston  v.  Richardson, 
17  111  302,  63  Am.  Dec.  309  and  a 
case  often  cited,  Vance  v.  Throck- 
morton, 5  Bush  (Ky.),  41,  96  Am. 
Dec.  327,  48  Am.  Dec.  416;  Cutler 
V.  Bonney,  30  Mich.  257;  Dunber 
V.  Day,  12  Neb.  596,  41  Am.  Rep. 
772;  Howe  Machine  Co  v.  Pease, 
49  Vt.  477;  Merritt  v.  Claghorn, 
23  Vt.  177;  Fisher  v.  Kelsey,  121 
U.  S.  383;  Burnham  v.  Young,  72 
Me.  273.  In  the  case  of  McDan- 
iells  V.  Robinson,  26  Vt.  316-335, 
the  court  say:  "In  regard  to  the 
general  liability  of  an  innkeeper 
it  is  surprising  that  the  law 
should  still  be  so  indeterminate. 
But  the  cases  are  fewer  and  less 
decisive  upon  this  important  sub- 
ject than  might  have  been  ex- 
pected. Even  the  absurd  dictum 
in  Newton  v.  Trigg,  1  Showers, 
269,  where  Eyre,  J.,  says,  'they 
(innkeepers)  may  detain  the  per- 
son of  the  guest  who  eats,'  has 
been  constantly  quoted  to  estab- 
lish the  existence  of  such  a  right 
in  the  landlord,  and  without  much 
examination  (although  the  point 
decided  in  the  case  is  whether  an 


innkeeper  may  become  a  bank- 
rupt), until  the  comparatively  re- 
cent case  of  Sunbolf  v.  Alford,  3 
M.  &  W.  247,  where  Lord  Abin- 
ger  says:  T  would  be  sorry  to 
have  it  thought  I  entertain  any 
doubt  in  this  case,  or  require  any 
authority  to  support  the  judgment 
I  propose  to  give,  that  no  such 
right  to  detain  the  person  of  the 
guest  can  be  for  a  moment  toler- 
ated in  a  free  country.  So,  too,  we 
find  numerous  creditable  judges, 
and  some  decisions,  carrying  the 
liability  of  an  innkeeper  to  the 
full  extent  of  a  common  carrier, 
and  thus  making  him  an  insurer 
against  all  losses  not  caused  by 
the  act  of  God  or  the  public  en- 
emy. But  such  is  clearly  not  the 
general  course  of  the  decisions  in 
Westminster  Hall,  anxi  that  ex- 
treme responsibility  was  expressly 
repudiated  by  this  court.  Merritt 
V.  Cleghorn,  23  Vt.  177.  It  is  there 
held  that  an  innkeeper  is  not  lia- 
ble for  loss  of  goods  of  the  guest 
by  fire  from  without,  the  probable 
act  of  an  incendiary,  and  without 
any  fault  or  negligence  on  his 
part,  or  on  the  part  of  any  inmate 
of  the  house.  But  we  have  never 
intimated  that  we  were  prepared 
to  put  the  liability  of  an  innkeeper 
upon  the  same  ground  as  that  of 
other  bailees.  On  the  contrary, 
we  regard  it  as  well  settled  that 
the  liability  of  an  innkeeper  is 
more  severe  than  that  of  any 
other  bailee,  with  the  single  ex- 
ception of  common  carriers." 
See  also  note  to  26  Vt.  342. 


§    354.]  LIABILITIES.  351 

the  only  question  in  such  cases  to  be  determined  is,  Was  the 
force  or  act  that  caused  the  loss  the  act  of  God  or  the  public 
enemy  ? 

An  act  of  God  has  been  defined  to  be  such  inevitable  accident 
as  could  not  be  prevented  by  human  care,  skill  or  foresight,  but 
results  from  natural  causes,  such  as  lightning,  tempests,  floods 
and  inundations.^  The  public  enemy  in  this  connection  applies 
to  enemies  in  time  of  war  with  foreign  nations,  or  to  pirates 
who  are  considered  at  war  vv'ith  all  mankind,  but  it  does  not  in- 
clude robbers,  thieves,  rioters  or  insurgents,  whatever  be  their 
violence.  It  has  been  held,  however,  that  the  Confederate  forces 
during  the  time  of  the  rebellion  were  public  enemies.^" 

§  354.  (3)  By  irresistible  force  without  negligence  or  fault 
on  the  part  of  the  innkeeper. — The  rule  is  established  by  the 
weight  of  authority,  that  where  there  is  an  absence  of  any  fraud, 
negligence  or  fault  on  the  part  of  the  innkeeper,  and  the  loss 
was  occasioned  by  irresistible  force  from  without  the  inn,  the 
innkeeper  is  not  liable.  The  rulings  upon  this  question  have 
been  gathered  from  the  reasoning  and  opinions  of  courts  in 
cases  holding  that  the  innkeeper  is  not  liable,  rather  than  cases 
where  the  question  of  liability  is  positively  decided. 

The  good  judgment  of  men,  tempered  with  equal  and  exact 
justice,  would,  however,  dictate  such  a  rule,  and  it  cannot  be 
said  to  be  at  variance  with  the  result  of  the  more  rigid  rule  that 
makes  the  innkeeper  an  insurer  of  the  property  of  his  guest, 
which  law  was  said  to  rest  in  the  demands  of  public  policy.  The 
reason  for  that  rule  was  that  there  often  existed  collusion  be- 
tween the  keeper  of  the  inn  and  those  who  were  robbers  and 
thieves  and  members  of  marauding  bands  who  pillaged  and 
robbed  the  guests  of  the  inn,  the  innkeeper  being  equally  at 
fault,  a  particeps  criminis  with  those  who  perpetrated  the  crime ; 
and  it  was  to  correct  this  fault  and  to  establish  a  high  degree  of 
diligence  to  punish  the  slightest  negligence  that  the  extremely 
rigid  rule  was  adopted;  but  the  reason  for  that  rule  does  not 
exist  in  the  conditions  here  stated,  and  there  is  no  reason  why, 
in  a  case  where  the  innkeeper  is  in  no  wise  at  fault,  and  where 

9  Anderson's  Law  Diet;  Mc-  1  Heisk.  269;  State  v.  Moore,  74 
Henry  v.  Philadelphia  R.  Co.,  4  Mo.  418;  League  v.  Rogan,  59 
Harr.  (Del.)  441.  Tex.    434;    Monongahela    Ins.    Co. 

10  Story  on  Bailments,  sec.  526;       v.  Chester,  43  Pa.  St.  493. 
Southern  Express  Co.  v.  Womack, 


352  INNKEEPERS  AND   BOARDING-HOUSE   KEEPERS.  [§    355. 

he  is  entirely  helpless  and  cannot  resist  or  oppose,  where  the 
force  is  actually  and  without  question  irresistible  and  from  with- 
out the  inn,  that  he  should  be  held  liable  for  the  loss.  Indeed, 
it  can  hardly  be  said,  as  we  have  already  discovered,  that  the 
innkeeper  was  at  any  time  considered  an  absolute  insurer  of  the 
property  of  the  guest.  His  liability  could  always  be  more  or 
less  limited,  if  not  entirely  removed,  by  proof  of  lack  of  fault  or 
fraud  or  negligence  on  his  part.  The  rule  more  correctly  stated 
is  that  an  innkeeper  is  bound  to  exercise  extraordinary  care; 
that  his  liability  is  approximately  that  of  an  insurer  when  the 
property  of  the  guest  is  brought  within  the  inn  and  expressly  or 
by  implication  confided  to  his  care.^^ 

§  355.  Forcible  robbery,  riots,  etc. — Diligence. — If  the  rob- 
bery or  riot  that  causes  the  loss  is  irresistible  and  without  fault 
or  negligence  on  the  part  of  the  innkeeper  or  those  in  charge  of 
the  inn,  it  can  be  clearly  said  that  he  would  be  excused  from 
liability.  While  this  is  undoubtedly  true,  it  must  be  remem- 
bered, however,  that  before  he  can  be  excused  he  must  show  that 
he  could  not  have  avoided  the  loss  if  he  had  exercised  a  high 
degree  of  diligence;  for  if  by  such  diligence  he,  or  those  under 
his  control,  could  have  avoided  the  loss,  he  would  be  liable.  If, 
for  example,  the  force  was  great  and  irresistible,  and  of  such  a 
nature  that  it  could  not  have  been  repelled  and  the  loss  could 
not  have  been  prevented,  yet  if  it  should  appear  that  the  inn- 
keeper failed  to  lock  the  safe  that  contained  the  property  placed 
in  his  hands  by  the  guest  for  safe-keeping,  or  failed  to  guard  the 
inn  as  usual  and  as  high  diligence  on  his  part  demanded,  or 
failed  to  call  to  his  assistance  any  aid  that  he  might  have  called 
in  to  protect  the  property,  he  could  not  shield  himself  by  simply 
saying  that  it  would  have  made  no  difference — that  the  robbery 
would  have  occurred  at  all  events;  that  the  force  was  such  that 
he  could  not  have  resisted  it.  He  must,  in  order  to  be  excused, 
show  that  he  exercised  extraordinary  diligence;  that  he  did  ev- 
erything possible  to  resist  the  force  and  avert  the  loss.  But  sup- 
pose he  knew  that  his  house  was  to  be  raided  by  robbers  or  rioters 
at  a  certain  time,  and  by  acting  promptly  he  could  have  given 
notice  to  the  police,  and  by  so  doing  have  thwarted  the  plans, 
or  at  least  have  impeded  the  progress,  of  the  robbers  or  rioters. 
It  would  certainly  be  his  duty  to  give  such  notice,  and  he  would 

iiWessenger  v.  Taylor,  1  Bush  (Ky.),  275. 


§    355.]  UABILJTIES.  353 

not  be  excused  if  he  failed  to  do  so,  and  to  do  whatever  else  he 
could  do  to  avoid  the  accomplishment  of  the  crime.  He  would 
be  held  to  the  very  highest  diligence  in  this  respect,  and  to  ex- 
cuse himself  from  loss  he  would  be  obliged  to  show  that  he  had 
exercised  such  diligence. ^- 

§  356.  If  the  loss  is  occasioned  by  force  from  within. — If 
the  loss  occurred  by  reason  of  force  from  within  the  inn,  whether 
from  the  servants  or  guests,  a  very  different  question  is  pre- 
sented. The  innkeeper,  it  is  said,  "guarantees  the  good  conduct 
of  all  persons  whom  he  admits  under  his  roof,"  whether  they 
are  servants  or  guests.  He  is  not  only  under  no  obligation  to 
receive  persons  as  guests  who  will  steal  from  or  rob  the  guests 
of  the  house,  but  the  law  forbids  that  they  shall  be  admitted  by 
him  either  as  guests  or  otherwise.  The  guests  of  the  inn  have 
the  legal  right  to  rely  upon  the  innkeeper  to  protect  them  not 
only  from  the  servants  of  the  inn,  over  whom  he  has  control,  but 
also  from  the  guests  whom  the  innkeeper  admits  to  the  inn.^' 
At  first  blush  it  would  seem  to  be  a  hardship  to  hold  the  inn- 
keeper to  loss  occurring  by  reason  of  larceny  or  robbery  com- 
mitted by  guests  who  have  been  admitted  within  the  inn,  and 
who  perhaps  are  unknown  to  the  innkeeper,  but  public  policy 
seems  to  demand  that  he  shall  insure  his  guests  from  loss  by 
reason  of  the  acts  of  his  servants  or  the  acts  of  his  guests.  It  is 
the  duty  of  the  innkeeper  to  provide  honest  servants  and  keep 
honest  inmates,  and  to  exercise  care  and  vigilance  over  all  per- 
sons who  may  come  into  his  house,  whether  as  guests  or  other- 
wise. By  the  common  law  he  is  responsible  not  only  for  the 
acts  of  his  servants  and  domestics,  but  also  for  the  acts  of  his 
guests.  The  reason  for  this  stringent  rule  has  been  well  stated 
by  Sir  William  Jones.     He  says :  i*  "  Rigorous  as  this  rule  may 

i2Hulbert   v.    Hartman,    79    111.  thorized    his    fellow-guest    to   sell 

App.  289.  goods  from  the  samples,  as  it  does 

13  A  hotel  keeper  is  not  relieved  not  follow  therefrom  that  he  had 

from  liability  for  loss  of  a  guest's  given   him   authority   to   have   ac- 

property,     including    samples     of  cess     to    the     room.      Jacobs     v. 

goods  taken  from  his  room  by  a  Haynes,  35  N.  Y.  S.  120. 

fellow-guest,   admitted   thereto  by  i*  Jones    on    Bailments,    95-96; 

the  chambermaid,  merely  because  Jalie  v.  Cardinal  et  al.,  35  Wis.  118- 

she   had    several    times    seen   the  126.     In   Cunningham  v.   Buckey, 

two  guests  together  in  the  room,  42  W.  Va.  671,  35  L.  R.  A.  850,  the 

or  because,  as  the  proprietor  after-  court    discusses    the    common-law 

wards  learned,  the  guest  had  au-  liability    in    this    respect.      Citing 

23 


354 


INNKEEPERS   AND   BOARDING-HOUSE   KEEPERS, 


[§  356. 


seem,  and  hard  as  it  may  actually  be  in  one  or  two  particular 
instances,  it  is  founded  on  the  great  principle  of  public  utility 
to  which  the  private  consideration  ought  to  yield.  For  travel- 
ers, who  must  be  numerous  in  a  rich  and  commercial  country, 


authorities,  the  court  say:  "By 
the  common  law  of  England  an 
innkeeper  is  responsible  for  the 
loss  of  the  goods  or  money  of  a 
traveler  who  is  his  guest,  when- 
ever the  loss  is  not  occasioned  by 
the  default  of  the  traveler  him- 
self, the  act  of  God  or  the  queen's 
enemies.  Saund.  Neg.  212.  'An 
innkeeper,  like  a  common  carrier, 
is  an  insurer  of  the  goods  of  his 
guests,  and  he  can  only  limit  his 
liability  by  express  agreement  or 
notice.'  2  Kent,  Com.  594.  'The 
common  law,  as  is  well  known, 
upon  grounds  of  public  policy,  for 
the  protection  of  travelers,  im- 
poses an  extraordinary  liability 
upon  an  innkeeper  for  the  goods 
of  his  guests,  though  they  have 
been  lost  without  his  fault.'  11 
Am.  &  Eng.  Enc.  Law,  p.  51.  'If 
an  innkeeper  fails  to  provide  hon- 
est servants  and  honest  inmates, 
according  to  the  confidence  re- 
posed in  him  by  the  public,  his 
negligence  in  that  respect  is 
highly  culpable,  and  he  ought  to 
answer  civilly  for  their  acts,  even 
if  they  should  rob  the  guests  who 
sleep  in  his  chambers.'  Jones. 
Bailments,  94-96.  'Generally,  and 
perhaps  universally,  he  has  been 
held  to  an  absolute  responsibility 
for  all  thefts  from  within  or  un- 
explained, whether  committed  by 
guests,  servants  or  strangers.' 
'The  general  principle  seems  to 
be  that  the  innkeeper  guarantees 
the  good  conduct  of  all  persons 
whom  he  admits  under  his  roof, 
provided  his  guests  are  them- 
selves guilty  of  no  negligence  to 


forfeit  the  guaranty.'  Cutler  v. 
Bonney,  30  Mich.  259,  18  Am.  Rep. 
127.  'Proof  of  the  loss  by  the 
guest  while  at  the  inn  is  pre- 
sumptive evidence  of  negligence 
on  the  part  of  the  innkeeper  or 
of  his  domestics.  It  is  the  duty 
of  the  innkeeper  to  provide  hon- 
est servants,  and  keep  honest  in- 
mates, and  to  exercise  care  and 
vigilance  over  all  persons  who 
may  come  into  his  house,  whether 
as  guests  or  otherwise.  By  the 
common  law  he  is  responsible  not 
only  for  the  acts  of  his  servants 
and  domestics,  but  also  for  the 
acts  of  other  guests.'  Jalie  v. 
Cardinal,  35  Wis.  118.  'Neither 
the  length  of  time  that  a  man  re- 
mains at  an  inn,  nor  any  agree- 
ment that  he  may  make  as  to  the 
price  of  board  per  day  or  per 
week,  deprives  him  of  his  charac- 
ter as  traveler  and  guest,  pro- 
vided he  retains  his  status  as  a 
traveler  in  other  respects.'  lb. 
There  is  no  question  that  the 
plaintiff  was  a  guest  at  the  de- 
dendant's  hotel,  and  that  while 
there  he  was  robbed  in  his  room 
while  asleep,  from  within  the  de- 
fendant's family,  including  his 
servants.  That  he  had  been  drink- 
ing, was  careless  with  his  money, 
and  trusted  in  the  honesty  of  de- 
fendant's household,  and  refused 
the  services  of  Mrs.  Buckley  as  to 
the  care  of  his  money,  will  not  ex- 
cuse the  defendant  from  the  dis- 
honesty of  those  admitted  to  his 
employment.  It  was  his  duty  to 
surround  himself  with  honest 
servants  for  the  protection  of  the 


§    358.]  LIABILITIES.  355 

are  obliged  to  rely  almost  implieity  upon  the  good  faith  of  inn- 
keepers whose  education  and  morals  are  none  of  the  best,  and 
who  might  have  frequent  opportunities  of  associating  with  ruf- 
fians and  pilferers,  where  the  injured  guest  would  seldom  if 
€ver  obtain  legal  proof  of  such  combination,  or  of  their  negli- 
gence if  any  actual  fault  had  been  committed  by  them. ' ' 

§  357.  (4)  By  reason  of  the  inherent  nature  of  the  prop- 
erty.— Where  the  loss  occurs  without  the  fault  of  the  innkeeper 
and  because  of  the  inherent  nature  of  the  property,  the  inn- 
keeper cannot  be  chargeable  with  it.  As,  where  fruit  perishes, 
or  where  animals  die  because  of  disease,  or  are  injured  on  ac- 
count of  their  vicious  nature.^^  But  should  the  animal  not  die 
or  be  lost  from  its  own  inherent  nature,  from  disease  or  its 
vicious  action,  the  innkeeper  would  be  liable  unless  he  could 
show  that  he  was  without  fault  or  that  it  resulted  from  such 
cause  as  would  excuse  him.^*^  In  Howe  Machine  Co.  v.  Pease,^'' 
the  court  say:  "Loss  of  goods  or  chattels  put  in  charge  of  an 
innkeeper  by  a  guest  gives  rise  to  a  presumption  of  the  inn- 
keeper's negligence;  but  that  presumption  may  be  repelled,  not 
only  by  proof  that  the  loss  occurred  through  inevitable  casualty 
or  superior  force,  but  by  proof  that  he  was  not  negligent,  or 
proof  that  the  goods  or  chattels  were  of  a  certain  perishable  or 
changeable  kind,  which  would  give  rise  to  a  presumption  that 
their  loss  occurred  in  due  course  and  order  of  things." 

§  358.  (5)  Through  the  fault  of  the  guest,  his  servants  or 
companions. — This  limitation  of  the  innkeeper's  liability  is 
upon  the  theory  that  the  guest  is  guilty  of  contributory  negli- 
gence, or  it  might  be  because  of  the  tortious  conduct  of  the 

public;  and  he  cannot  excuse  him-  Hagar,   145   Mass.   186;    Roclcwell 

self    from     liability    by     showing  v.  Proctor,  39  Ga.  105. 

that  the  servant  was  a   stranger  is  Howe   Machine  Co.  v.  Pease, 

and  hired  on  recommendation  as  49   Vt.   477;    Metcalf  v.   Hess,   14 

to    good    character.      He    should  111.  129. 

have  exercised  care  and  vigilance  is  Hill  v.  Owen,  5  Blackf.  (Ind.) 

over  wandering  servants  admitted  323.     And  an  innkeeper  was  held 

to   his   house,   and   see   that  they  liable    for    damage    to    a    guest's 

did   not  have   the   opportunity  to  horse    by    the    horse    of    another 

steal    from    his    guests."      Gile    v.  guest,  although  the  injury  was  oc- 

Libby,  36  Barb.  (N.  Y.)  70;  Houser  casioned    without   any   negligence 

V.  Tully,  62  Pa.  St.  92 ;   Walsh  v.  on  the  part  of  the  innkeeper.    Sib- 

Porterfield,  87  Pa.  St.  376;   Fuller  ley  v.  Aldrich,  33  N.  H.  553. 

V.   Coats,   18  Ohio,   343;    Smith  v.  "49  Vt.  477. 

Wilson,   36   Minn.   334;    Spring  v. 


356 


INNKEEPERS  AND   BOARDING-HOUSE   KEEPERS. 


[§  358. 


guest  or  the  fault  of  his  servants  or  companions.  Just  what 
such  negligence  is,  that  will  excuse  the  innkeeper  from  liability, 
has  been  the  subject  of  a  great  deal  of  discussion.  In  Michigan 
it  has  been  held  that  the  innkeeper's  liability  for  the  baggage 
of  the  guest  is  not  diminished  but  rather  increased  by  the  fact 
that  the  guest  had  become  so  intoxicated  at  his  bar  as  to  be  un- 
able to  take  care  of  it  himself.^^ 

It  has  been  frequently  held  that  the  mere  fact  of  failure  to 
lock  or  fasten  the  door  of  the  room  at  night,  as  matter  of  law, 
is  not  such  negligence  on  the  part  of  the  guest  as  will  relieve 
the  innkeeper  from  loss,  but  that  this  fact  may  be  taken  in  con- 
nection with  others  as  evidence  of  negligence  for  the  jury  to 
consider.  The  tendency,  however,  of  the  more  modern  cases  is 
that  failure  to  lock  or  bolt  the  door  of  a  room  at  an  inn,  when 
there  is  a  lock  or  bolt  upon  it,  may  of  itself  be  given  to  the  jury 
as  negligence.^^  In  Sicann  v.  Smith  ^'^  it  was  held:  Where  an 
inmate  of  a  lodging-house  leaves  the  door  of  his  room  unlocked, 
knowing  that  persons  may  enter  the  house  and  go  to  his  room 
unnoticed,  he  cannot  recover  of  the  keeper  of  the  house  for 


18  Rubenstein  v.  Cruikshanks, 
54  Mich.  199.  "The  fact  that  the 
guest  is  intoxicated  or  his  door 
unlocked  will  not  destroy  the  lia- 
bility of  an  inkeeper  for  theft 
committed  by  his  servants."  Cun- 
ningham V.  Buckey,  47  W.  Va. 
67. 

i»  Spring  V.  Hager,  145  Mass. 
186;  Spice  v.  Bacon,  36  L.  T.  (N. 
S.)  196;  Herbert  v.  Markwell,  45 
L.  T.  (N.  S.)  649.  In  the  case  of 
Morgan  v.  Ravey,  6  Hurl.  &  N. 
265,  266,  it  is  said  that  "witnesses 
were,  however,  called  on  the  part 
of  the  defendants  to  prove  that 
the  plaintiff  had  told  them  he  had 
not  locked  the  door.  It  was  ad- 
mitted that  he  did  not  use  the 
bolt.  There  was  a  notice  posted 
up  over  the  mantelpiece  request- 
ing all  visitors  to  use  the  night 
bolt.  The  plaintiff  admitted  he 
saw  it,  but  said  he  did  not  read 
beyond  the  words  'notice.'     Chief 


Baron  Pollock,  at  nisi  prius,  left 
the  question  of  negligence  to  the 
jury,  but  told  them  at  the  same 
time  that  the  guest  was  not  bound 
to  lock  his  bedroom  door."  Mc- 
Daniels  v.  Robinson,  26  Vt.  316; 
11  Am.  &  Eng.  Ency.  53.  "De- 
spite the  divergency  of  the  decis- 
ions in  regard  to  the  scope  of  the 
liability  of  the  innkeeper,  it  has 
generally  been  held  that  he  is  ab- 
solutely liable  for  all  thefts  from 
within,  or  unexplained  losses  of 
property  in  his  charge,  but  that 
he  may  be  discharged  from  liabil- 
ity by  any  contributory  negligence 
of  the  guest,  his  servants  or  com- 
panions, and  in  many  cases  he 
has  been  discharged  when  the 
guest  exercised  no  special  con- 
trol over  his  property." 

20  14  Daly,  114 ;  Smith  v.  Wilson, 
36  Minn.  334;  Fuller  v.  Coats,  18 
Ohio  St.  343. 


§    359.]  LIABILITIES.  357 

property  stolen  from  his  room,  being  himself  lacking  in  ordinary- 
care.  The  question  of  negligence  as  applied  to  the  guest  of  the 
hotel,  as  in  every  other  case  where  negligence  is  depended  upon 
as  a  defense,  must  depend  entirely  upon  the  circumstances  and 
facts  surrounding  the  particular  occasion;  as,  for  example,  the 
place  where  it  is  said  to  have  occurred  would  have  a  great  deal 
to  do  in  the  matter  of  deciding  whether  what  was  done  was 
negligence.  In  one  place  it  might  not  be  considered  negligence 
not  to  lock  the  door  of  a  lodging  room,  while  in  another,  from 
the  very  surroundings  of  the  place,  it  might  be  considered  gross 
negligence.  In  Smith  v.  Wilson  ^^  it  was  held  that  ''a  guest  of 
an  inn  who  had  on  a  belt  containing  $500  while  asleep  in  his 
room,  the  door  of  which  could  be  opened  by  pulling  a  wire  at- 
tached to  the  bolt  from  the  outside,  was  not  guilty  of  contribu- 
tory negligence,  the  money  having  been  stolen."  And  in  Becker 
V.  Warner  ^^  it  was  held  a  question  for  the  jury  to  determine 
whether  it  was  contributory  negligence  where  the  guest,  who 
was  intoxicated,  left  the  window  of  his  room  on  the  ground 
floor  open  and  the  lights  burning  in  the  room  and  went  to  bed. 
§  359.  Reasonable  regulations  of  the  inn. — There  is  no  doubt 
that  the  innkeeper  may  limit  his  liability  by  requiring  his  guests 
to  conform  to  certain  reasonable  regulations.  These  regula- 
tions must  in  this  case,  as  in  every  case  where  they  are  used  for 
the  limiting  of  liability,  be  reasonable.  This  is  generally  done 
by  posting  them  in  the  several  rooms  of  the  inn;  but  the  mere 
fact  of  posting  them  in  the  rooms  is  not  sufficient :  it  is  necessary 
that  they  should  come  to  the  actual  notice  of  the  guest.  Where 
reasonable  regulations  have  been  made,  and  the  guest  has  had 
actual  notice  of  them,  he  will  be  bound  by  them  if  it  appears 
that  by  reason  of  his  failure  to  comply  with  the  regulations  the 
loss  occurred.  For  in  such  case  it  could  be  reasonably  concluded 
that  the  loss  was  occasioned  by  the  negligence  of  the  guest.^^ 

21  36  Minn.  334.  Brown    Hotel    Co.    v.    Burckhardt 

22  35  N.  Y.  S.  739.  (Colo.),    56    Pac.    188.      Where    a 

23  Fuller  V.  Coats,  18  Ohio  St.  guest  handed  to  the  clerk  of  a 
343;  Cashill  v.  Wright,  6  El.  &  Bl.  hotel  a  box  containing  valuables, 
891;  Purvis  v.  Coleman,  21  N.  Y.  without  directions  to  put  it  in  the 
111.  "A  notice  posted  in  the  room  hotel  safe,  not  compliance  with 
of  an  hotel  directing  guests  to  regulations.  Horton  v.  Terminal 
leave  their  valuables  in  the  hotel  Hotel  Co.,  114  Mo.  App.  357,  89  S. 
vaults  does  not  apply  to  mineral  W.  363.  Where  guest  left  quan- 
specimens    in    a    guest's    trunk."  tity   of  jewelry   in   traveling   bag 


358 


INNKEEPERS  AND   BOARDING-HOUSE   KEEPERS.         [§    360. 


The  guest  is  also  liable  for  the  negligence  of  his  servants  which 
results  in  loss  or  injury  to  the  property,  as  well  as  the  negligence 
of  his  companions,  or  persons  whom  be  harbors,  or  persons  over 
whom  he  has  control  while  a  guest  at  the  inn.^* 

§  360.  For  what  property  liable. — As  a  general  rule  an  inn- 
keeper is  liable  for  all  the  goods,  chattels  and  money  of  the 
guest  that  is  brought  within  the  inn;  and  the  limitation  that 
commonly  applies  to  common  carriers,  which  limits  the  prop- 
erty to  that  which  is  carried  for  the  convenience  of  the  pas- 
senger, does  not  apply  in  the  case  of  an  innkeeper,^^  but  includes 


checked  in  check  room  over  night, 
not  complying  with  notice,  and  it 
was  stolen,  held  negligence  and 
could  not  recover.  EIcox  v.  Hill, 
98  U.  S.  218,  L.  Ed.  103,  and  notes. 

24Calye's  Case,  8  Coke,  32; 
Walsh  V.  Porterfield,  87  Pa.  St. 
376.  "The  conduct  of  the  guest 
contributing  to  his  loss,  whether 
voluntary  or  negligent,  is  always 
a  defense;  and  his  failure  to  de- 
posit valuables  in  a  safe  place 
provided  by  the  landlord,  after 
express  notice  so  to  do,  and  his 
neglect  to  make  use  of  sufficient 
fastenings  provided  for  the  secu- 
rity of  the  room  from  which  they 
were  stolen,  are  evidence  of  con- 
tributory negligence."  Shultz  v. 
Wall,  134  Pa.  St.  2G2;  Johnson  v. 
Richardson,  17  111.  302;  Kisten  v. 
Hildebrandt,  9  B.  Mon.  (Ky.)  74. 
In  Buibank  v.  Chapin,  140  Mass. 
123,  it  was  held  "that  an  inn- 
keeper, in  the  absence  of  an  ex- 
press contract  to  the  contrary,  is 
liable  for  the  loss  by  theft  of  the 
property  of  his  guest,  although 
the  guest  knowingly  fails  to  com- 
ply with  the  reasonable  regula- 
tions of  the  inn,  if  the  loss  is  not 
attributable  to  the  non-compliance 
with  such  regulations." 

25  Berkshire  Woolen  Mills  v. 
Proctor,  7  Cush.  417;  Wilkins  v. 
Earle,  44  N.  Y.  172.     Some  of  the 


states,  however  have  held  to  the 
rule  that  the  personal  property 
for  which  the  innkeeper  is  liable 
consists  of  such  articles  of  ne- 
cessity or  personal  convenience 
as  are  usually  carried  by  passen- 
gers for  their  personal  use.  Las- 
sen &  Whitaker  v.  Clark,  37  Ga. 
242.  Maryland  follows  the  same 
rule;  and  in  Pettigrew  v.  Barn- 
ham,  11  Md.  434,  it  was  held: 
"The  innkeeper  is  liable  without 
regard  to  actual  fault  or  neglect 
on  his  part,  but  such  liability  is 
limited  to  what  is  considered  bag- 
gage and  does  not  extend  to  every 
article  the  guest  may  choose  to 
carry  with  him;  the  term  'bag- 
gage' does  not  embrace  merchan- 
dise or  other  valuables  not  de- 
signed for  use  or  personal  conven- 
ience on  the  journey.  Held,  fur- 
ther, that  the  innkeeper  is  not 
liable  for  silver  knives,  forks  and 
spoons  carried  by  the  guest  in  his 
trunk,  but  is  liable  for  personal 
ornaments  or  jewelry  appropriate 
for  a  traveler's  wardrobe."  In 
Tierber  v.  Burrows,  27  Md.  130,  it 
was  held:  "Innkeepers,  in  relation 
to  the  baggage  of  their  guests, 
stand  on  the  same  footing  as  car- 
riers of  passengers."  The  great 
weight  of  authority,  hov/ever,  is 
as  laid  down  in  the  text, — the  lia- 
bility held  to  extend  to  personalty 


§   361.]  LIABILITIES.  359 

whatever  property  the  guest  may  take  within  the  inn  while  he 
is  a  guest.  It  has  been  held  to  include  a  peddler's  stock  of 
goods,  and  other  property  of  an  entirely  different  nature  from 
that  which  a  guest  would  carry  for  his  convenience  while  travel- 
ing, as  will  be  noticed  in  cases  cited  in  the  note.  There  has  been 
no  distinction  made  by  the  courts  between  money  and  goods  of 
a  guest  in  cases  touching  the  liability  of  the  innkeeper,  and  the 
responsibility  of  the  innkeeper  in  respect  to  the  money  of  his 
guest  is  not  limited  to  such  an  amount  as  is  necessary  for  the 
guest's  traveling  expenses.^^  The  only  exception,  if  indeed  it 
is  an  exception,  is  where  the  guest  obtains  a  room  to  be  used 
distinctively  for  business  purposes,  as  for  displaying  goods  for 
sale  or  show;  but  even  in  such  case  the  liability  of  an  ordinary 
bailee  attaches.^'^ 

§  361.  Must  be  a  guest  of  the  inn  and  the  property  within 
the  inn. — Before  the  liability  of  the  innkeeper  attaches,  how- 
ever, it  must  clearly  appear  that  the  owner  of  the  property 
which  is  injured  or  lost,  and  for  which  recovery  is  sought,  is  a 
guest,  of  the  inn  at  the  time  of  the  loss,  and  that  the  property 
was  infra  hospitium.  The  facts  necessary  to  be  shown  to  prove 
that  the  person  was  a  guest  of  the  inn  have  already  been  dis- 
cussed.^^ 

of  all  kinds.  Clute  v.  Wiggins,  to  be  within  the  rule  of  liability; 
14  Johns.  (N.  Y.)  175;  Hulett  v.  and  this  was  also  held  in  Ruben- 
Smith,  33  N.  Y.  571;  Houser  v.  stein  v.  Cruikshanks,  54  Mich. 
Tully,    62    Pa.    St.    92;    Metcalf  v.  199. 

Hess,  14  111.  129;  Hilton  V.  Adams,  26  Smith    v.    Wilson,    36    Minn. 

71   Me.    19;    Cohen  v.   Manuel,   91  334.     See  also  cases  cited  in  pre- 

Me.  274;  Smith  v.  Wilson,  36  Minn.  ceding  note.   In  Raines  v.  Maxwell 

334;    Piper   v.    Manny,    21    Wend.  House  Co.,  112  Tenn.  219,  2  Am. 

(N.    Y.)    282,    where    plaintiff    re-  &   Eng.  Ann.   Cas.  488,   the  court 

covered  for  a  tub  of  butter.    And  discussed  the  statute  as  to  liabil- 

in  Sneider  V.  Geiss,  1  Yeates  (Pa.),  ity  for  jewelry.     In  the  notes  to 

34,  the  recovery  was  for  two  hun-  this  case  many  cases  are  cited  as 

dred  and  thirty-one  Spanish  milled  to  the  common-law  liability  of  the 

dollars.     In   Hulett   v.    Smith,    33  innkeeper  for  watch  and  jewelry 

N.   Y.   571,   the   recovery   was   for  of  guests.     Among  the  cases  cited 

the    plaintiff's    horse    and    wagon  are  Lanier  v.  Youngblood,  73  Ala. 

and    a    load    of    buckskin    goods;  587;   Ramaley  v.  Leland,  43  N.  Y. 

and  in  Clute  v.  Wiggins,  14  Johns.  539;  Murchison  v.  Sergent,  69  Ga. 

(N.  Y.)  175,  recovery  was  for  cer-  206;  Noble  v.  Milliken,  77  Me.  359. 

tain   bags    of    wheat   and    barley.  ~^  See  post,  §  367. 

In  Cohen  v.  Manuel,  91  Me.  274,  a  28  Innkeeper  is  not  liable  to  one 

peddler's  stock  of  goods  was  held  for  loss   of  baggage  delivered   to 


360  INNKEEPERS  AND   BOARDING-HOUSE   KEEPERS.  [§    362. 

§  362.  Infra  hospitium. — When  the  goods  of  the  guest 

may  be  said  to  be  within  the  inn  is  a  question  of  very  great  im- 
portance in  this  connection.  Just  when  can  it  be  said  that  the 
innkeeper  has  the  goods  in  his  possession  as  an  innkeeper?  In 
other  words,  Just  when  can  it  be  said  that  his  liability  com- 
mences? When  are  the  goods  infra  hospitium  f  It  is  not  neces- 
sary that  the  guest  shall  himself  bring  his  goods  within  the  inn 
and  deposit  them  with  the  innkeeper  at  the  time  of  his  arrival, 
or  that  he  shall  even  have  them  in  his  possession  at  the  time  of 
his  arrival  at  the  inn;  the  innkeeper  is  liable  whenever  the 
property  is  placed  either  in  his  possession  as  an  innkeeper,  or 
whenever  it  is  put  in  the  custody  or  control  of  his  servants, 
either  within  the  inn  or  without  and  about  the  inn,  if  the  prop- 
erty is  taken  possession  of  by  those  who  are  acting  as  the  serv- 
ants of  the  innkeeper  and  in  compliance  with  his  directions;  or 
when  the  traveler  arrives  at  the  inn  and  places  his  baggage  and 
property  in  the  hands  of  the  porter,  whose  business  it  is  to 
take  charge  of  the  baggage  of  guests, — in  such  cases  it  is  held 
to  be  within  the  inn  and  subjects  the  innkeeper  to  liability. 
The  placing  of  the  property  in  the  hands  of  the  servants  and 
the  agents  of  the  innkeeper,  who  are  authorized  and  expected  to 
wait  upon  the  guests  and  to  care  for  their  property,  is  placing 
it  in  the  custody  of  the  innkeeper  himself.  As,  for  example, 
where  animals  and  vehicles,  loads  of  grain,  goods  of  peddlers, 
or  other  like  property  has  been  placed  in  the  hands  of  the  hostler 
at  stables  belonging  to  the  inn,  it  has  been  frequently  held  that 
the  property  is  infra  hospitium,  and  if  loss  occurs  for  which  the 
innkeeper  cannot  be  legally  excused,  he  is  liable.^''     And  it  has 

the  porter  of  the  inn  by  one  who  sent  to  depot  to  solicit  customers 

Intends  to  stop  at  the  inn,  but  who  for  the  hotel,  he  becomes  a  guest 

does  not;  nor  is  the  innkeeper  in  of  the  hotel  at  that  time  and  the 

such   case   liable   as   a  gratuitous  innkeeper    is    liable   for   the   loss 

bailee.    Tulane  Hotel  Co.  v.  Holo-  of  the  baggage  so  received  by  the 

han,  112  Tenn.  214,  79  S.  W.  113.  porter.     Coscary  v.  Nagle,  83  Ga. 

It   is   a  perequisite   to   the   liabil-  696,  6  L.  R.  A.  483. 
ity  that  the  relation  of  innkeeper  29  Mason   v.   Thompson,   9   Pick, 

and    guest    should    have    existed.  (Mass.)    280;    Albian  v.  Presby,   8 

See  notes  to  case  of  Tulane,  etc.  N.  H.  408.     This  case,  though  an 

Co.  V.  Hollohan,  2  Am.  &  Eng.  Ann.  early   one,    collects    many    of    the 

Gas.   345-47,  where  several  cases  authorities  on  this  subject.     The 

are     cited     and     commented     on.  court    say:    "The    general    princi- 

But  where   one   gives  his   checks  pie  that  an  innkeeper  is  bound  to 

for    baggage    to    porter    of    hotel  keep  safely  the  goods  of  his  guest 


§  362.] 


LIABILITIES. 


361 


been  held  that  where  an  hotel  keeper  sends  his  porter  to  the 
depot  to  solicit  persons  traveling  to  stop  at  the  inn,  and  there 
takes  charge  of  the  baggage,  the  traveler  becoming  a  guest  of 
the  hotel,  the  liability  of  the  innkeeper  for  the  baggage  of  the 
traveler  begins  on  the  delivery  of  the  baggage  to  the  porter.^^*^ 
And  in  Williams  v.  Moore  ^^  it  is  held  that  an  hotel  keeper  to 
whom  a  guest  delivers  his  baggage  for  the  purpose  of  having 
his  baggage  brought  to  the  hotel  is  responsible  for  the  loss  of 
such  baggage  through  the  negligence  of  an  expressman  to  whom 
the  checks  are  given  for  such  purpose,  although  the  baggage  is 
never  brought  to  the  hotel.  The  retaining  of  money  or  valu- 
ables on  his  own  person  while  a  guest  at  the  inn  is  not  neces- 
sarily such  an  exclusive  possession  as  would  excuse  the  inn- 
keeper from  liability. ^^  Nor  will  the  liability  of  the  innkeeper 
cease  if  the  guest  directs  his  goods  to  be  kept  in  a  certain  part 
of  the  inn,  or  should  order  them  taken  to  his  room.^^  But  if 
the  guest  should  give  such  directions  as  to  the  care  of  the  goods 
or  property  as  would  remove  it  from  the  custody  or  control  of 


which  are  in  his  custody  infra 
TiospitiMm,  but  that  he  shall  an- 
swer for  nothing  without  the  inn, 
is  well  settled.  There  are  excep- 
tions where  the  loss  is  occasioned 
by  the  servants  or  companions  of 
the  guest,  not  necessary  to  be  fur- 
ther noticed  at  this  time."  In 
Clute  V.  Wiggins,  14  Johns.  175, 
it  was  held,  where  a  sleigh-load 
of  grain  was  put  by  the  guest  into 
an  outhouse  appurtenant  to  the 
inn,  where  loads  of  that  descrip- 
tion were  usually  received,  and 
the  grain  was  stolen  during  the 
night,  that  the  innkeeper  was  lia- 
ble for  the  loss.  Judge  Story,  re- 
ferring to  this  case,  says:  "Where 
goods  are  delivered  at  the  usual 
place  for  such  goods  at  the  inn, 
the  innkeeper  is  chargeable  with 
them,  although  not  strictly  within 
the  inn."     Story,  Bailm.  480. 

3  In  Coscary  v.  Nagle,  83  Ga. 
696,  It  was  held:  "When  a  trav- 
eler arrives  at  a  depot  and  is  met 
by  one  who  is  a  porter  of  an  inn. 


hotel,  or  house  kept  for  the  ac- 
commodation of  transient  guests, 
wayfarers  and  travelers,  who  in- 
dicates to  the  traveler  a  certain 
conveyance  by  which  he  can  go 
to  such  place  or  not,  and  the  trav- 
eler delivers  to  him  his  baggage 
or  the  check  therefor,  the  traveler 
is  thereby  a  guest  of  such  inn, 
hotel  or  house,  so  far  as  to  render 
the  proprietor  thereof  liable  for 
the  safe-keeping  or  redelivery  of 
the  same;  the  liability  of  the  pro- 
prietor commences  from  the  time 
of  the  delivery  of  the  baggage  or 
check  to  the  porter;  all  that  the 
traveler  must  do  is  to  assure  him- 
self that  the  person  representing 
himself  as  such  porter  is  in  fact 
the  porter  of  the  house."  Dick- 
inson V.  Winchester,  4  Cush. 
(Mass.)  114. 

31  69  111.  App.  618. 

32jalie  V.  Cardinal,  35  Wis.  118; 
Smith  V.  Wilson,  36  Minn.  334. 

33  Fuller  V.  Coats,  13  Ohio  St. 
433. 


362  INNKEEPERS  AND  BOARDING-HOUSE  KEEPERS.         [§    363. 

the  innkeeper,  as,  for  example,  placing  it  in  the  hands  of  some 
other  person  for  safe-keeping,  in  such  case  the  innkeeper  would 
be  relieved  of  liability.^* 

§  363.  Lost  by  theft. — Where  the  loss  occurs  by  theft 

committed  by  the  servants  of  the  innkeeper,  or  by  other  guests, 
and  without  the  fault  of  the  guest  sustaining  the  loss,  his  serv- 
ants or  companions,  the  innkeeper  is  liable.  The  rule  is  ad- 
mirably stated  in  the  case  of  Houser  v.  Tella.^^  The  court  say : 
' '  The  liability  of  an  innkeeper  arises  from  the  nature  of  his  em- 
ployment. He  holds  out  a  general  invitation  to  travelers  to 
come  to  his  house  and  he  receives  a  reward  for  his  hospitality. 
The  law  in  return  imposes  on  him  corresponding  duties,  one  of 
which  is  to  protect  the  property  of  those  whom  he  receives  as 
guests.  He  is  bound  to  take  all  possible  care  of  the  goods,  money 
and  baggage  of  his  guests  deposited  in  his  house,  or  intrusted 
to  the  care  of  his  family  or  servants,  and  he  is  responsible  for 
their  acts  as  well  as  the  acts  of  other  guests.  If  the  goods  of 
the  guest  are  damaged  in  the  inn  or  are  stolen  from  it  by  the 
servants  or  domestics,  or  by  a  stranger  guest,  he  is  bound  to 
make  restitution,  for  it  is  his  duty  to  provide  honest  servants 
and  to  exercise  an  exact  vigilance  over  all  persons  coming  into 
his  house  as  guests  or  otherwise.  His  responsibility  extends  to 
all  his  servants  and  domestics,  and  to  all  the  goods  and  money 
of  his  guest  which  are  placed  within  the  inn,  and  he  is  bound  in 
every  event  to  pay  for  them  if  stolen,  unless  they  were  stolen 
by  a  servant  or  companion  of  the  guest.  In  case  of  a  loss  by 
theft  it  is  no  excuse  for  the  innkeeper  that  he  was  sick  or  ab- 
sent from  home  at  the  time,  for  he  is  bound  in  such  case  to  pro- 
vide honest  and  faithful  servants  according  to  the  confidence  re- 
posed in  him  by  the  public.  .  .  .  But  though  an  innkeeper 
is  liable  on  grounds  of  soundest  policy  and  public  convenience 
for  whatever  is  deposited  in  his  house  by  a  guest,  he  is  not  re- 
sponsible for  the  loss  or  embezzlement  of  his  guest's  money, 
where  he  does  not  deposit  it  on  the  security  of  the  inn,  but  in- 

34  In  Houser  v.  Telia,  62  Pa.  St.  mate    in    whom    he    reposes    his 

92,  it  was  held  "an  innkeeper  is  confidence."     Sneider  v.   Geiss,   1 

not  liable  for  the  loss  or  embez-  Yeates  (Pa),  24. 
zlement     of     his     guest's     money  35  62    Pa.    St.    92-95;    Walsh    v. 

when   he   does   not   deposit   it   on  Porterfield,  87  Pa.  St.  376;    Clute 

the    security    of    the    inn    but    in-  v.  Wiggins,  14  Johns.  175. 
trusts  it  to  another  guest  or  in- 


§    365.]  LIABILITIES.  363 

trusts  it  to  another  guest  or  inmate  for  safe-keeping,  in  whom 
he  reposes  his  trust  and  confidence. ' '  ^^ 

§  364.  If  a  boarder,  not  a  guest. — If  the  person  who  sustains 
the  loss  be  merely  a  boarder  and  not  a  guest  at  the  hotel,  the 
extraordinary  liability  for  loss  does  not  attach.  But  in  such 
case  the  liability  for  property  lost  by  theft,  or  by  any  of  the 
causes  already  discussed,  rests  upon  the  question  of  ordinary 
diligence  rather  than  upon  the  exceptional  liability,  for  the  inn- 
keeper is  only  a  bailee  for  hire.^^  There  are  some  cases  that  are 
not  in  harmony  with  this  doctrine;  but  this  seems  to  be  the 
general  rule. 

§  365.  Property  of  a  third  person. — The  ownership  of 

the  property  lost  infra  hospitiuni  by  the  guest  is  not  an  es- 
sential to  recovery.  If  the  property  of  a  principal  is  brought 
by  his  agent  or  servant  while  a  guest  within  the  inn  as  baggage, 
or  for  use  in  the  business  of  the  principal,  and  is  lost  under 
such  circumstances  as  would  ordinarily  render  the  innkeeper 
liable,  in  such  case  the  usual  liability  of  an  innkeeper  attaches 
and  the  principal  would  have  an  action  against  him  for  such 
loss.  In  Towson  v.  Havre  de  Grace  Bank^^  it  was  held  "if  a 
servant  is  robbed  of  his  master's  money  or  goods  while  a  guest 
at  an  inn,  the  master  may  maintain  an  action  against  the  inn- 
keeper. ' ' 

38  Sneider  v.  Geiss,  1  Yeates,  35.  of  the  goods.     In  a  later  case  in 

37  A  very  full  discussion  of  this  England,     Holden     v.     Soulby,     8 

question,  as  well  as  of  the  liabil-  Com.  B.   (N.   S.)    254,  264,  270,  it 

ity  of  the  innkeeper  to  protect  the  was    held     that    a    lodging-house 

property    of    the    guest,    may    be  keeper    was    not    responsible    for 

found  in  the  notes  in  the  case  of  the  loss  of  certain  property  of  a 

Taylor  v.  Downey,  104  Mich.  532,  lodger    who    was    about    to    quit, 

29  L.  R.  A.  92.    In  England  it  has  which     had     been     stolen     by     a 

been  held  that  the  boarding-house  stranger,   who   in   the   absence  of 

keeper  is  liable  as  a  hired  bailee  such  lodger  was  permitted  by  the 

to  take  such  care  of  the  boarder's  occupier  of  the  house  to  enter  the 

baggage     as     a     prudent     person  room  for  the  purpose  of  viewing 

would   take   of   his   own   property  it.      The    supreme    court    of    Ten- 

under  like  circumstances.    Dansey  nessee    in    Manning    v.    Wells,    9 

V.  Richardson,  3  El.  &  Bl.  144,  148,  Humph.  746,  held  "that  it  is  suffi- 

171.     But  in   this   case   the   court  cient  to  give  the  boarder  a  rem- 

was     divided    as    to    whether    a  edy   when   he   shall   have   proven 

boarding-house  keeper  is  liable  for  the  innkeeper  has  been  guilty  of 

the    negligence    of    his    servants  gross  negligence." 
where    the    latter    leaves    a    door  38  6  Harris  &  John.  (Md.)  47,  14 

ajar  and  thus  facilitates  the  theft  Am.  Dec.  254. 


364  INNKEEPERS   AND   BOARDING-HOUSE  KEEPERS.         [§    366. 

§  366.  Liable  to  corporation  for  loss  of  agent's  goods. — And 
so  it  has  been  held  that  a  corporation  may  sustain  an  action 
against  the  innkeeper  for  loss  of  its  goods  while  in  possession  of 
its  agent  who  is  a  guest  at  the  inn.  In  Berkshire  Woolen  Co.  v. 
Proctor ^^  this  question  was  fully  considered.  The  court  say: 
"Another  ground  of  defense  taken  in  behalf  of  the  defendants 
is,  that  this  action  cannot  be  maintained  because  plaintiffs,  be- 
ing a  corporation,  were  not  and  could  not  be  in  the  nature  of 
things  the  guest  of  the  defendants;  that  an  innkeeper  is  liable 
only  for  the  goods  of  his  guest,  and  that  therefore  the  defendants 
are  not  liable  for  the  money  of  the  plaintiffs,  as  they  were  not 
actually  or  constructively  the  guests  of  the  defendant.  But  this 
reasoning  cannot  prevail.  R.  was  the  defendant's  guest,  and  he 
was  the  agent  and  servant  of  the  plaintiffs,  and  the  money 
which  was  lost,  and  for  which  this  suit  was  brought,  was  the 
plaintiffs'  money  in  the  possession  of  R.,  delivered  by  the  plain- 
tiffs to  him  as  their  servant  and  agent,  to  be  expended  in  their 
business.  This  action,  therefore,  can  well  be  maintained  upon 
the  well-settled  principle  of  law,  that,  if  a  servant  is  robbed  of 
his  master's  money  or  goods,  the  master  may  maintain  the  ac- 
tion against  the  innkeeper  in  whose  house  the  loss  was  sus- 
tained.'"'" 

The  bailee  who  is  a  guest  at  the  inn  may  recover  for  property 
lost  while  a  guest,  and  this  is  the  rule  even  if  he  is  a  gratuitous 
bailee  and  not  liable  to  the  general  o\vner  for  the  loss. 

In  Chamherlain  v.  West  *^  an  action  was  brought  by  a  guest 
to  recover  the  value  of  a  diamond  scarf-pin  alleged  to  have  been 
stolen  from  his  room  while  a  guest  at  the  hotel.  It  was  shown 
that  the  plaintiff  was  not  the  owner  of  the  pin ;  that  it  had  been 
loaned  to  him  by  a  friend  about  ten  years  previously.     The 

39  7  Cush.  417-424.  point  that  the  bailee   may   main- 

40  Bedle  v.  Morris,  Yelv.  162;  tain  an  action,  though  not  re- 
Bennett  V.  Mellor,  5  Ir.  Rep.  273;  sponsible  to  the  general  owner  for 
Mason  v.  Thompson,  9  Pick.  280;  the  loss,  Falkner  v.  Brown,  13 
Grinnell  v.  Cook,  3  Hill.  485;  Coy-  Wend.  63;  Morgan  v.  Portland, 
kendall  v.  Eaton,  55  Barb.  (N.  Y.)  etc.  Co.,  35  Me.  55;  Finn  v.  West- 
188-190.  ern  R.  Co.,  112  Mass.   524.     So  a 

4137  Minn.  54;  Jellett  v.  St.  father  may  recover  loss  of  prop- 
Paul  R.  Co.,  30  Minn.  265;  Russell  erty  stolen  from  his  son  while  a 
V.  Butterfield,  21  Wend.  (N.  Y.)  guest  at  an  inn.  In  Epps  v. 
300;  Mechanics'  Bank  v.  Farmers'  Hinds,  27  Miss.  657,  61  Am.  Dec. 
Bank,   60  N.   Y.   40.     And   to   the  528,  529,  it  was  said:   "Where  the 


§    367.]  LIABILITIES.  365 

court,  in  its  opinion,  says:  "Nothing  is  better  settled  than  that, 
in  actions  for  tort  in  the  taking  or  conversion  of  personal  prop- 
erty against  a  stranger  to  the  title,  a  bailee,  mortgagee  or  other 
special  property  man  is  entitled  to  recover  full  value,  and  must 
account  to  the  general  owner  for  the  surplus  recovered  beyond 
the  value  of  his  own  interest;  but  as  against  the  general  owner 
or  one  in  privity  with  him,  he  can  only  recover  the  value  of  his 
special  property." 

§  367.  Exception — Goods  for  sale  or  show. — The  extraor- 
dinary liability  of  an  innkeeper  applies  where  the  guest  is  using 
the  inn  for  his  accommodation  as  a  guest,  and,  as  we  have  seen, 
attaches  to  property  which  he  carries  with  him  either  for  use  or 
for  pleasure,  and  is  not  limited  in  amount  or  value;  but  where 
a  guest  obtains  a  room  to  be  used  distinctively  for  business  pur- 
poses, as  for  the  displaying  of  goods  for  show  or  sale,  the  extra- 
ordinary liability  of  the  innkeeper  does  not  attach,  and  for  the 
loss  of  such  goods  he  is  only  liable  as  an  ordinary  bailee  for  or- 
dinary negligence.  In  Myers  v.  Cottrill  *^  the  court  say :  "I 
think  this  is  the  true  rule  of  law  on  the  subject.  If  a  person 
going  into  a  hotel  as  a  guest  takes  to  his  room  not  ordinary 
baggage,  not  those  articles  which  generally  accompany  the  trav- 
eler, but  valuable  merchandise  such  as  watches  and  jewelry,  and 
keeps  them  there  for  show  and  sale,  and  from  time  to  time  in- 
vites parties  to  his  room  to  inspect  and  to  purchase,  unless  there 
is  some  special  circumstance  in  the  case  showing  that  the  inn- 
keeper assumes  the  responsibility  as  of  ordinary  baggage,  as  to 
such  merchandise  the  special  obligations  imposed  by  the  common 
law  do  not  exist,  and  the  guest,  as  to  those  goods,  becomes  their 
vendor  and  uses  his  room  for  the  sale  of  merchandise  and  really 
changes  the  ordinary  relations  between  innkeeper  and  guest.  It 
is,  we  know  as  a  matter  of  experience,  impracticable  for  the  land- 
lord to  notice  and  vouch  for  every  person  who  goes  into  the 
room.     The  guest  permits  them  to  stay  as  long  as  he  pleases  and 

son  was  merely  invested  with  a  that  clothing  purchased  by  a 
discretion  as  to  the  expenditure  father  for  a  minor  son  belongs  to 
of  the  money,  the  loss  necessarily  the  father,  and  that  he  may  re- 
falls  upon  the  party  who  was  cover  for  its  loss  by  an  innkeeper 
bound  to  furnish  other  means  for  or  carrier,  unless  the  son  has 
the  same  purpose."  Dickinson  v.  been  emancipated. 
Winchester,  4  Cush.  114,  50  Am.  42  5  Biss.  465. 
Dec.  760,  761,  764.     It  was  ruled 


366  INNKEEPERS  AND   BOARDING-HOUSE   KEEPERS.         [§    368. 

shows  his  goods  and  sells  them  to  whomsoever  he  pleases.  "We 
must  presume  that  it  is  not  for  that  purpose  that  the  innkeeper 
allows  persons  to  come  to  his  house  and  enter  his  rooms,  and  the 
fact  that  the  vendor  may  sleep  in  the  room  we  do  not  think 
changes  the  rule."  And  it  was  held  in  this  ease  that  if  the 
plaintiff  did  use  the  room  as  a  place  for  showing  and  selling  his 
merchandise  as  such,  the  extraordinary  liability  of  the  innkeeper 
did  not  exist.  And  in  Carter  v.  Eohhs*^  the  court  say:  "So, 
if  a  person  who  is  a  guest  have  a  room  especially  for  the  purpose 
of  showing  or  selling  his  goods,  he  cannot  hold  the  innkeeper  to 
his  liability  strictly  as  such  in  respect  to  these  goods." 

§  368.  Liability  for  the  safety  and  protection  of  his  guests. — 
The  doctrine  of  the  liability  of  the  innkeeper  proceeds  upon  the 
theory  that  he  has  control  of  his  house  and  of  the  property,  serv- 
ants and  guests  therein.  He  selects  his  own  servants,  and  is 
responsible  for  their  acts  while  performing  their  duties.  To  a 
certain  extent  he  has  control  over  his  guests ;  he  is  not  bound  to 
receive  all  who  apply;  and  the  rules  limiting  the  reception  of 
guests  are  such  as  tend  to  exclude  people  who  are  not  proper 
and  fit  persons  to  be  harbored  and  kept  at  an  inn,  and  who 
could  not  be  trusted  to  demean  themselves  in  an  orderly  man- 
ner. So  that  the  innkeeper,  in  the  exercise  of  sound  discretion 
and  good  judgment,  has  the  right  to  refuse  to  receive  such  per- 
sons as  guests,  limiting  those  to  be  received  as  guests  to  persons 
who  are  fit,  law-abiding,  and  reputable.**     Thus  far  the  inn- 

43  12  Mich.  52;  Burgess  v.  Clem-  249;  Becker  v.  Haynes,  29  Fed. 
ents,  4  M.  &  S.  306;  Mowers  v.  441;  Fisher  v.  Kelsey,  121  U.  S. 
Fethers,  61  N.  Y.  34,  19  Am.  Rep.  383,  30  L.  Ed.  930. 
244,  246;  Neal  v.  Wilcox,  4  Jones  44  in  Markham  v.  Brown,  3  N. 
L.  (N.  C.)  146,  67  Am.  Dec.  266,  H.  523,  it  was  held  that  "an  inn- 
267;  Fisher  v.  Kelsey,  121  U.  S.  keeper  is  liable  if  his  house  is  dis- 
383;  Scheffer  v.  Corson  (S.  Dak.),  orderly,  and  he  cannot  be  held  to 
58  N.  W.  555.  And  in  an  early  wait  until  an  affray  is  begun  be- 
English  case  the  same  rule  was  fore  he  interposes,  but  may  ex- 
laid  down.  "A  landlord  is  not  elude  common  brawlers  and  any 
bound  to  furnish  a  shop  to  every  who  come  with  intent  to  commit 
guest  who  comes  into  his  house;  an  assault  or  make  an  affray.  So 
and  if  a  guest  takes  exclusive  pos-  he  may  prohibit  the  entry  of  one 
session  of  a  room  which  he  uses  whose  misconduct  in  other  partic- 
as  a  warehouse  or  shop,  he  dis-  ulars,  or  whose  filthy  condition, 
charges  the  landlord  from  his  would  subject  his  guests  to  an- 
common-law  liability."  Farns-  noyance."  And  it  has  been  held 
worth    V.    Packwood,    1    Starkie,  an   innkeeper   may   refuse    to   re- 


§    368.]  LIABILITIES.  367 

keeper  may  choose ;  and  it  is  for  these  reasons,  and  in  the  follow- 
ing out  of  the  general  theory  fixing  the  liability  of  the  inn- 
keeper, that  it  may  be  said  that  the  innkeeper  is  bound  to  exer- 
cise reasonable  care  in  protecting  the  guest  within  his  inn  from 
personal  injury  while  remaining  at  his  house  as  his  guest.  His 
liability  for  the  safety  of  his  guest,  is  to  be  distinguished  how- 
ever from  his  liability  for  the  safe  keeping  of  the  property  of  the 
guest,  which  is  that  of  an  insurer  limited  by  certain  exceptions 
heretofore  mentioned.*^ 

By  the  great  weight  of  authority  it  is  held  that  an  innkeeper 
is  not  an  insurer  of  the  safety  of  the  person  of  his  guest ;  nor  is 
he  liable  for  injuries  inflicted  upon  him,  either  by  those  received 
as  guests  or  by  the  negligent  or  wilful  acts  of  the  servants  of 
the  inn,  when  he  has  exercised  reasonable  care  to  prevent  it  and 
is  himself  without  fault.  The  rule  generally  accepted  is  that 
the  innkeeper's  obligations  to  protect  and  guard  the  safety  of 
his  guest  is  limited  to  the  exercise  of  reasonable  care  for  their 
safety,  comfort,  and  entertainment.  What  reasonable  care  is,  is 
a  question  of  fact  for  the  jury,  to  be  determined  by  the  facts 
and  circumstances  of  each  particular  case.  It  would  be  at  least 
that  care  which  an  ordinarily  prudent  and  careful  innkeeper 
would  exercise  for  the  safety  and  comfort  of  his  guests  under 
just  such  circumstances.*® 

ceive  a  disorderly  guest,  or  re-  Barker  (Neb.  1905),  69  L.  R.  A. 
quire  him  to  leave  his  house.  He  642,  103  N.  W.  446,  where  the 
is  not  bound  to  examine  into  the  court  held  that  the  innkeeper  im- 
reasonableness  of  the  guest's  re-  pliedly  undertakes  that  his  guest 
quirements.  In  Atwater  v.  Saw-  shall  be  treated  with  due  consid- 
yer,  76  Me.  539,  it  was  held  that  eration  for  his  safety  and  com- 
""mere  apprehension  of  insult  is  fort,  and  that  the  act  of  a  serv- 
no  excuse  for  an  innkeeper's  re-  ant  resulting  in  injury  to  the 
fusal  to  receive  a  person  as  guest,  obviously  amounts  to  a 
guest,  without  circumstances  and  breach  of  contract,  contending 
facts  justifying  such  apprehen-  that  the  liability  of  the  innkeeper 
sion."  for  injuries  inflicted  by  his  serv- 
es Anfe,  §  351.  ants  upon  his  guests,  is  the  same 
46  An  interesting  discussion  of  as  the  liability  of  the  common 
the  liability  of  the  innkeeper  for  carrier  for  the  safety  of  his  pas- 
injury  of  the  guest  by  the  serv-  sengers  in  such  like  cases.  With 
ants  of  the  inn  was  had  in  the  the  report  of  the  case  in  69  L.  R. 
case  of  Clancy  v.  Barker.  The  A.  642,  numerous  cases  are  cited 
question  was  first  involved  and  and  quoted  from  in  the  notes  and 
decided  by  the  supreme  court  of  briefs  of  counsel.  The  same  ques- 
the  state  of  Nebraska.     Clancy  v.  tions   in   a   case    upon    the    same 


368 


INNKEEPERS  AND   BOARDING-HOUSE  KEEPERS. 


[§    369. 


§  369.  Defective  or  unsound  condition  of  the  premises. — It 
is  the  duty  of  the  innkeeper  to  exercise  ordinary  care  in  keep- 
ing the  premises  in  such  condition  that  the  guest  may  be  safe 
while  within  the  inn  and  using  it  in  the  ordinary  manner.  This 
is  upon  the  theory  that  the  innkeeper  extends  an  implied  invi- 


facts  are  discussed  and  decided  by 
the  United  States  circuit  court  of 
appeals  for  the  eighth  circuit. 
Clancy  v.  Barlter,  66  C.  C.  A.  469, 
131  Fed.  161,  69  L.  R.  A.  653, 
where  the  court  took  a  some- 
what different  view  of  the  ques- 
tion of  liability  and  laid  down  the 
doctrine  of  the  text,  holding  that 
the  liability  was  not  the  same  as 
the  liability  of  a  common  carrier. 
Among  other  things  the  court  say: 
"The  general  rule  of  law  govern- 
ing the  liability  of  innkeepers 
the  rule  which  has  re- 
ceived the  approval  of  every 
court  which  had  ever  decided  the 
question,  so  far  as  we  have  been 
able  to  discover,  was  that  an  inn- 
keeper was  not  an  insurer  of  the 
safety  of  the  person  of  his  guest 
against  injury,  but  that  his  obliga- 
tion was  limited  to  the  exercise 
of  reasonable  care  for  the  safety, 
comfort  and  entertainment  of  his 
visitors."  Weeks  v.  McNulty,  101 
Tenn.  499,  43  L.  R.  A.  185,  70  Am. 
St.  Rep.  693,  48  S.  W.  809;  Shef- 
for  V.  Willoughby,  163  111.  518,  521, 
522,  34  L.  R.  A.  464,  54  Am.  St. 
Rep.  483,  45  N.  E.  253;  Gilbert  v. 
Hoffman,  66  Iowa,  206,  55  Am. 
Rep.  263,  23  N.  W.  632;  Stanley 
V.  Bircher,  78  Mo.  245.  The  court 
then  discusses  the  liability  of  the 
carriers  of  passengers  in  such 
cases,  and  then  points  out  the 
distinguishing  features  of  the  two 
cases,  showing  a  "marked  differ- 
ence in  the  character  of  the  con- 
tracts of  carriage  on  a  railroad  or 
steamboat    and    of   entertainment 


at  an  inn,  and  a  wide  difference 
in  the  relation  of  the  parties  to 
these  contracts.  In  the  former 
the  carrier  takes,  and  the  passen- 
ger surrenders  to  him  the  control 
and  dominion  of  his  person,  and 
the  chief,  nay,  practically  the 
only,  occupation  of  both  parties, 
is  the  performance  of  the  con- 
tract of  carriage.  For  the  time 
being  all  other  occupations  are 
subordinate  to  the  transportation. 
The  carrier  regulates  the  move- 
ments of  the  passenger,  assigns 
him  his  seat  or  berth,  and  deter- 
mines when,  how  and  where  he 
shall  ride,  eat  and  sleep,  while 
the  passenger  submits  to  the 
rules,  regulations  and  directions 
of  the  carrier,  and  is  transported 
in  the  manner  the  latter  directs. 
.  .  ."  The  logical  and  necessary 
result  of  this  relation  of  the  par- 
ties is  that  every  servant  of  the 
carrier  who  is  employed  in  as- 
sisting to  transport  the  passenger 
safely,  ...  is  constantly  act- 
ing within  the  scope  and  course 
of  his  employment  while  he  is 
upon  the  train  or  boat,  because 
he  is  one  of  those  selected  by  his 
master  and  placed  in  charge  of 
the  person  of  the  passenger  to 
safely  transport  him  to  his  desti- 
nation. .  .  .  The  innkeeper 
does  not  take  nor  does  the  guest 
surrender  the  control  or  dominion 
of  the  latter's  person.  The  per- 
formance of  the  contract  of  enter- 
tainment is  not  the  chief  occupa- 
tion of  the  parties,  but  it  is  sub- 
ordinate to  the  ordinary  business 


§  369. 


LIABILITIES. 


369 


tation  to  all  to  come  to  his  house  and  be  entertained;  and  he  is 
therefore  liable  for  injuries  sustained  in  consequence  of  the  bad 
condition  of  the  premises.  And  so  if  a  guest  should  be  injured 
by  reason  of  a  defective  elevator;  or  by  reason  of  want  of  or- 
dinarily skillful  management  of  the  same ;  *'^  or,  as  has  been  held, 
if  the  guest  should  be  injured  by  the  falling  of  a  ceiling  in  the 
inn,  which  was  due  to  the  negligence  of  the  innkeeper  in  keep- 
ing the  same  in  repairs, — in  all  such  cases  the  guest  would  have 
an  action  against  the  innkeeper,  based  upon  want  of  ordinary 
care.  There  is,  however,  this  limitation:  "The  general  duty  of 
an  innkeeper  to  take  proper  care  for  the  safety  of  his  guest  does 
not  extend  to  every  room  in  his  house  at  all  hours  of  the  night 
or  day,  but  must  be  limited  to  those  places  into  which  guests 
may  be  reasonably  supposed  to  be  likely  to  go  in  a  reasonable 
belief  that  they  are  entitled  or  invited  to  do  so. ' '  *^ 


or  pleasure  of  the  guest.  .  . 
The  natural  and  logical  result  of 
this  relation  of  the  parties  is  that 
when  the  servants  are  not  en- 
gaged in  the  course  or  scope  of 
their  employment,  although  they 
may  be  present  in  the  hotel,  they 
are  not  performing  their  master's 
contract,  and  he  is  not  liable  for 
their  negligent  or  wilful  acts." 
The  dissenting  opinion  by  Judge 
Thayer  is  a  strong  argument  for 
a  different  rule,  contending  that 
the  same  liability  obtains  as  in 
cases  against  carriers  of  passen- 
gers. In  Rahmel  v.  Lehndorff,  142 
Cal.  681,  76  Pac.  659,  65  L.  R.  A. 
88,  it  was  held,  that  an  innkeeper 
in  the  absence  of  negligence  on 
his  part,  is  not  liable  for  injuries 
to  a  guest  caused  by  an  assault 
committed  by  a  servant  employed 
in  the  inn;  the  court  saying:  "An 
innkeeper  is  no  doubt  guilty  of 
negligence  if  he  admits  to  his 
hotel,  or  permits  to  remain  there, 
whether  as  guest  or  servant,  a 
person  of  known  violent  and  dis- 
orderly propensities,  who  will 
probably  assault  or  otherwise  mal- 

24 


treat  his  guests;  and  for  the  con- 
sequence of  such  negligence  he 
may  be  liable  in  damages."  Ac- 
ton v.  Reed,  93  N.  Y.  S.  911.  In 
Block  V.  Sherry,  87  N.  Y.  S.  160, 
it  was  held  that  whether  spilling 
a  glass  of  water  on  a  guest  by 
a  waiter  is  negligence,  depends 
upon  the  circumstances  of  the 
case. 

47  In  Scott  V.  Churchill,  15  Misc. 
(N.  Y.)  80,  affirmed  in  157  N.  Y. 
692,  it  was  held  that  "a  guest  at 
a  hotel  is  entitled  to  recover  for 
injuries  caused  by  the  fall  of  a 
passenger-elevator,  if  the  hotel- 
keeper  was  chargeable  with  neg- 
ligence in  allowing  the  elevator 
to  become  unsafe.  And  so  it  be- 
comes the  duty  of  the  proprietor 
of  an  hotel  or  apartment  house  to 
guard  the  shaft  so  that  persons 
shall  not  be  injured  by  falling  or 
stumbling  into  it."  Atkinson  v. 
Abraham,  45  Hun,  238;  Dawson 
v.  Sloan,  100  N.  Y.  620, 19  111.  App. 
571,  152  Mass.  513. 

48  Walker  v.  Midland  R.  Co.,  55 
L.  T.  (N.  S.)  489;  Oxford  v.  Prior, 
14  W.  R.  611;  Sandys  v.  Florence, 


370  INNKEEPERS  AND   BOAEDING -HOUSE   KEEPERS.  [§    372. 

§  370,  Injuries  from  fire. — The  liability  of  the  innkeeper  for 
injuries  to  guests  occasioned  by  fire  rests  upon  the  proof  of  neg- 
ligence upon  the  part  of  the  innkeeper.  If  it  can  be  shown  that 
the  innkeeper  was  not  guilty  of  negligence,  and  that  by  exer- 
cising ordinary  diligence  the  injury  could  not  have  been  averted, 
in  such  case  at  common  law  there  would  be  no  liability.  In 
some  of  the  states,  however,  statutes  have  been  passed  requiring 
innkeepers  to  provide  fire-escapes.  If  an  injury  was  occasioned 
by  reason  of  the  failure  of  the  innkeeper  to  comply  with  the 
statute,  he  would  be  liable;  but  even  where  such  statutes  exist, 
if  it  should  be  shown  that  the  guest  who  was  injured  could  not 
have  effected  an  escape  or  averted  the  injury  by  the  use  of  the 
fire-escape,  then  the  mere  fact  that  there  was  no  fire-escape  pro- 
vided would  not  be  sufficient  to  fix  the  liability  upon  the  inn- 
keeper, if  there  was  no  want  of  ordinary  diligence  upon  his  part. 
In  other  words,  it  would  be  necessary  to  show  that  the  injury 
occurred  in  consequence  of  the  want  of  a  fire-escape.*^ 

§  371.  Unsanitary  condition  of  the  inn  and  unwholesome 
food. — Upon  the  same  principle  it  is  the  duty  of  the  innkeeper 
to  exercise  at  least  ordinary  diligence  in  keeping  the  hotel  in  a 
sanitary  condition.  He  holds  out  to  the  public  impliedly,  by  in- 
viting them  to  his  inn,  that  they  will  be  entertained  in  a  place 
that  is  fit  for  the  purpose  for  which  it  is  kept.  Where,  there- 
fore, one  by  reason  of  the  unsanitary  condition  of  the  hotel  con- 
tracts a  disease,  or  where  by  reason  of  the  condition  of  the  hotel 
he  is  subjected  to  some  contagious  disease,  in  such  case  the  inn- 
keeper would  be  liable.  And  the  same  obligation  rests  upon  him 
with  reference  to  food.  It  is  his  duty  to  furnish  to  the  guests 
wholesome  food;  and  where,  by  reason  of  the  unwholesomeness 
of  food,  guests  are  injured,  a  liability  attaches  to  the  innkeeper 
and  an  action  can  be  sustained.^" 

§  372.  Limiting  liability, — There  seems  to  be  no  reason  why 
the  innkeeper  cannot  expressly  or  impliedly  contract  to  limit 

47    L.    J.    C.    P.    598;    Stanley    v.  hotel,   permitted   a   person   to  be- 

Biercher,  78  Mo.  245;   Ten  Brock  come  a  guest   without  informing 

V.  Wells,  47  Fed.  690.  her   of  the   presence   of   the   dis- 

49  Weeks  v.  McNulty,  101  Tenn.  ease,   it   was    held   that   the    inn- 

495.  keeper    would    be    liable    to    the 

60  ShefEer  v.  Wiloughby,  163  111.  guest   if   she   contracted   the   dis- 

518,  54  Am.  St.  Rep.  483.    Where  ease  while  in  the  house,  and  was 

an  innkeeper,  with  knowledge  of  herself    guilty    of    no    negligence 

the  prevalence  of  smallpox  in  his  contributing  to  the  injury. 


§    373.]  LIABILITIES.  371 

his  liability  for  the  loss  of  the  property  of  his  guest,  as  it  is  en- 
tirely a  question  of  property  rights  in  which  the  public  can  have 
no  interest,  and  public  policy  would  not  oppose  it  if  the  limita- 
tion did  not  go  to  the  extent  of  excusing  gross  negligence ;  for  as 
a  general  rule,  no  matter  to  what  extent  the  limitation  is  at- 
tempted, the  liability  will  be  that  of  an  ordinary  bailee.^^  The 
innkeeper  can  no  doubt  by  a  regulation  require  his  guests  to  de- 
posit their  valuable  articles  in  a  safe  or  vault  provided  by  him, 
and  this  regulation  may  be  brought  home  to  the  guest  by  no- 
tice ;  but,  as  has  already  been  stated,  such  notice  must  be  brought 
to  the  personal  attention  of  the  guest.^^  In  most  of  the  states, 
however,  this  matter  is  regulated  by  statute.  The  duties  and 
the  liabilities  of  the  innkeeper  are  fixed,  as  well  as  the  duty  of 
the  guest. 

§  373.  Innkeeper  liable  as  ordinary  bailee. — Where  the  ex- 
traordinary liability  of  an  innkeeper  does  not  attach  for  the  loss 
of  the  goods  of  the  guest,  the  innkeeper  may  be  liable  as  an  or- 
dinary bailee.  As,  for  example,  where  the  goods  of  the  guest 
are  kept  for  show  or  sale,  or  where  goods  are  held  by  the  inn- 
keeper for  charges  after  the  guest  has  departed,  or  for  goods 
and  baggage  of  a  regular  boarder,  as  we  have  already  seen,^^  or 
for  the  goods  of  a  guest  who  has  paid  his  bill  and  left  the  hotel, 
leaving  his  baggage  in  charge  of  the  innkeeper,  for  a  reasonable 
length  of  time  the  innkeeper  is  held  to  be  liable  as  an  ordinary 
bailee.^* 

51  Pinkerton  v.  Woodward,  33  an  agreement  that  the  innkeeper 
Cal.  547.  shall  not  be   responsible   for   the 

52  Where  a  guest  is  notified  that  loss  of  valuables  unless  deposited 
he  must  deposit  his  baggage  in  a  in  the  safe  is  printed  upon  the 
particular  place  for  safe-keeping  register  heading,  and  the  guest 
and  he  neglects  to  do  so,  the  inn-  signs  the  register,  it  is  held  not 
keeper  is  not  responsible  in  case  to  constitute  a  contract,  or  to  be 
of  loss.  Wilson  v.  Halpin,  1  Daly  binding  upon  the  guest,  in  the  ab- 
(N.  Y.),  496.  General  notice,  how-  sence  of  proof  that  he  saw  it  and 
ever,  is  not  sufficient.  Stanton  assented  to  it.  Bernstein  v. 
V.  Leland,  4  E.  D.  Smith  (N.  Y.)  Sweeney,  33  N.  Y.  Sup.  Ct.  271. 
88.     The  notice  must  be  brought  See  ante,  §  359. 

home  to  the  guest.    The  fact  that  es  Fisher   v.    Kelsey,   121    U.    S. 

it  was  posted  on  the  door  of  the  383,   16  Fed.  R.   71-74;    Carter  v. 

guest's   room    is   not   sufficient   to  Hobbs,    12    Mich.    52;    Mowers    v. 

raise  a  presumption  that  he  had  Fethers,  61  N.  Y.  34,  19  Am.  Rep. 

knowledge    thereof.      Bodwell    v.  244,  247. 

Bragg,  29  Iowa,  232.     And  where  54  Adams   v.    Clem,    41   Ga.    65; 


372 


INNKEEPERS  AND  BOARDING-HOUSE  KEEPER. 


[§  374. 


§  374.  Liable  as  gratuitous  bailee. — For  goods  deposited 
with  the  innkeeper  for  safe-keeping  but  without  recompense,  as 
where  baggage  is  left  by  one  not  a  guest  at  the  hotel,  the  inn- 
keeper, deriving  no  benefit,  is  a  gratuitous  bailee  and  liable  only 
as  such;  and  the  same  rule  would  apply  Avhere  the  goods  of  a 
departed  guest  had  been  left  with  the  innkeeper  for  an  unrea- 
sonable length  of  time,  and  in  such  case  the  innkeeper  would  be 
liable  only  for  gross  negligence.^° 


Giles  V.  Fountleroy,  13  Md.  126.  In 
Murray  v.  Marshall,  9  Colo.  482,  it 
was  said:  "Departing  guests  not 
infrequently  leave  baggage  in 
care  of  the  innkeeper  for  a  few 
hours  or  a  few  days,  to  be  called 
for  or  to  be  forwarded  to  some 
designated  destination.  The  great 
increase  of  modern  travel  creates 
an  increased  demand  for  more  ex- 
tensive accommodations  in  this 
respect.  With  a  view  of  influ- 
encing travelers  in  selecting  their 
hotels,  innkeepers  more  or  less 
generally  respond  to  this  de- 
mand and  provide  increased  ac- 
commodations and  assume  vol- 
untarily duties  respecting  the 
baggage  of  the  guest  is  thus  left 
in  their  charge.  In  such  case,  if 
the  liability  of  the  innkeeper  is 
that  of  voluntary  bailee  without 
compensation,  guests  are  left  with 
little  or  no  protection.  The  case 
shows  a  tendency  to  enlarge  it. 
And  so  in  this  case  it  was  held 
that  when  a  guest  on  leaving  an 
hotel  without  the  intention  of  re- 


turning as  a  guest,  fails  to  pay  his 
bill,  but  returns  within  forty- 
eight  hours  to  get  his  valise,  the 
innkeeper  was  bound  to  ordinary 
diligence,  and  the  loss  of  the 
valise  raised  the  presumption  of 
negligence." 

55  Where  the  innkeeper  was  lia- 
ble only  as  a  gratuitous  bailee,  it 
was  held  error  to  refuse  to  charge 
the  jury  that  he  was  bound  to 
take  such  care  of  the  property 
as  the  most  inattentive  and 
thoughtless  person  would  take  of 
his  own  property.  Horton  v.  Ter- 
minal, etc.  Co.,  114  Mo.  App.  357, 
89  S.  W.  363.  Where  one  gave 
his  baggage  to  the  porter  of  a 
hotel  at  the  station  intending  to 
become  a  guest  at  the  hotel,  but 
did  not,  held  innkeeper  not  liable 
as  a  gratuitous  bailee,  for  the 
reason  the  porter  had  no  author- 
ity to  create  that  relation.  Tu- 
lane  Hotel  Co.  v.  Hollohan,  112 
Tenn.  214,  2  Am.  &  Eng.  Ann. 
Cas.  345,  and  notes. 


CHAPTER  lY. 


^. 


COMPENSATION  AND  LIEN  OP  THE  INNKEEPER. 


375.  Compensation — Lien. 

376.  The     lien     a     common-law 

lien. 

377.  Amount   of   compensation. 

378.  If  the  guest  an  infant. 

379.  The  property  of  third  per- 

sons. 

380.  Same  subject. 

381.  The  guest  a  servant,  agent 

or  bailee  of  the  owner. 


§  382.  Where  the  property  is  ani- 
mate. 

383.  Where  the  guest  has  wrong- 

fully   possessed    himself 
of  the  property. 

384.  The  lien  of  the  inn-keeper 

fixed  by  statute. 

385.  The  lien  lost  or  waived. 

386.  Cannot  be  revived. 

387.  Boarding-house    keeper. 


§  375,  Compensation — Lien. — The  innkeeper  is  bound  to  re- 
ceive all  who  apply  at  his  inn  for  entertainment,  subject  to  cer- 
tain limitations  already  discussed,  and  is  liable  if  he  fails  to 
exercise  that  high  degree  of  diligence;  in  some  cases  the  liability 
even  approaching  that  of  an  insurer,  as  we  have  seen.  For  this 
entertainment  and  care  he  is  entitled  to  compensation,  which  he 
may  demand  in  advance  if  he  chooses  to  do  so  —  a  compensation 
limited  only  by  reasonableness  in  amount.  The  payment  of  this 
is  secured  to  the  innkeeper  by  a  lien  on  the  baggage  or  property 
of  the  guest  brought  within  the  inn,^  the  lien  being  a  general 
lien  upon  the  property  infra  hospitium,  attaching  not  only  to 
property  within  the  hotel,  but  to  animals  and  property  in  the 
stables  or  barns  of  the  innkeeper;  and  not  only  for  the  keep  of 
the  guest,  but  for  the  keep  of  the  animals  or  property,  and  for 
any  extras,  as  for  wine  or  entertainment  given  by  the  guest  to 
his  friends.  And  this  lien  is  not  limited  to  the  property  of  the 
guest  infra  Jiospitium  not  exempt  from  execution;  such  exempt 
property  is  subject  to  the  innkeeper's  lien;  ^  and  so  is  the  prop- 


1  Rosenplaenter  v.  Roessle,  54 
N.  Y.  2G2;  Manning  v.  Hollen- 
beck,  27  Wis.  202;  Proctor  v. 
Nicholson,  7  Car.  &  Pay.  67;  Tur- 
rell  V.  Crawley,  13  Q.  B.  197;  Al- 
vord  v.  Davenport,  43  Vt.  30. 


29  Am  Dec.  492.  But  it  has  been 
held  that  a  lien  cannot  attach  to 
horses  carrying  United  States 
mail.  United  States  v.  Braney, 
2  Wheel.  C.  C.  513.  But  see  Young 
V.  Kimball,  23  Pa.  St.     193.     It  is 


2  Swan  V.  Bourne,  47  Iowa,  501,      now  generally  held  that  the  lien 


37-1  INNKEEPERS    AND    BOARDING-HOUSE    KEEPER.         [§    378. 

erty  of  an  infant  guest  if  brought  within  the  inn  and  into  the 
legal  custody  of  the  innkeeper ;  ^  and  so  also  is  the  property  of  a 
married  woman  for  her  keep,  care  and  entertainment  while  a 
guest. 

In  England  it  has  been  held  that  the  separate  property  of  a 
married  woman  would  become  subject  to  the  lien  of  the  landlord 
where  credit  was  given  to  the  husband  to  make  payments  on  ac- 
count; the  balance  of  the  innkeeper's  bill  not  being  paid.  In 
that  case  the  innkeeper  was  allowed  to  detain  the  wife's  luggage 
notwithstanding  it  was  the  separate  property  of  the  wife.* 

§  376.  The  lien  a  common-law  lien. — The  lien  is  a  common- 
law  lien  upon  all  the  property  brought  within  the  inn  by  the 
guest  and  in  the  custody  of  the  innkeeper.  There  is  no  limita- 
tion except  by  statute,  and  the  statutes  do  not  generally  limit, 
but  more  often  enlarge,  the  scope  of  the  lien.  The  laws  exempt- 
ing property  from  levy  and  sale  on  execution  are  special  limita- 
tions upon  the  general  execution  and  are  only  inoperative  to  the 
extent  of  such  limitation ;  and  so  in  the  case  in  question,  if  there 
are  no  special  limitations  by  statute,  the  common-law  lien  would 
attach  to  all  the  property  of  the  guest,  as  we  have  said.^ 

§  377.  Amount  of  compensation. — The  amount  of  compensa- 
tion the  innkeeper  is  entitled  to  receive  and  charge  and  which 
will  be  secured  by  his  lien,  as  a  general  rule,  may  be  said  to  be 
whatever,  under  all  the  circumstances  of  the  case  and  the  gen- 
eral usage  of  the  business  in  the  locality  where  the  inn  or  hotel 
is  situated,  would  be  considered  reasonable ;  and  this  amount  in- 
cludes the  reasonable  charges  for  the  lawful  entertainment  of 
friends  of  the  guest  who  have  been  invited  by  him  to  the  inn  for 
entertainment,  as  well  as  the  wune,  cigars,  and  extras  which  he 
may  order  for  said  entertainment,  or  which  he  may  have  had 
while  a  guest  at  the  hotel. 

§  378.  If  the  guest  an  infant. — If  the  guest  is  an  infant,  it 
would  seem  on  general  principles  governing  the  law  of  dealings 
with  infants,  that  there  might  be  some  limitation  upon  this  gen- 
is  a  general  one  and  attaches  to  3  Watson  v.  Cross,  2  Duv.  (Ky.) 
all    of    ttie    property    brought    by      147. 

the   guest  to   the  hotel.     Milliner  4  Gordon  v.  Silver,  59  L.  J.  Q.  B. 

V.  Florence,  L.  R.  3  Q.  B.  Div.  507,  25  Q.  B,  Div.  491,  63  L.  T. 
484.     But  does  not  attach  to  the       (N.    S.)    283. 

person   or   clothing   of  the   guest.  e  Swan  v.  Bourne,  47  Iowa,  501. 

Sunbolf  V.  Alvord,  3  Mees.  &  W. 
248. 


§    379.]  COMPENSATION  AND  LIEN   OP  INNKEEPER.  375 

eral  rule  as  to  the  amount  for  whicli  charges  could  be  made  by 
the  innkeeper  and  the  lien  attach  to  the  property  of  the  infant 
for  the  amount.  Generally,  as  is  well  understood,  an  infant  is 
liable  for  necessaries  and  for  benefits  in  certain  cases ;  but  to  say 
that  wine  suppers  and  extravagant  extras  are  necessaries  might 
be  an  enlargement  of  the  rule  of  law,  to  say  the  least,  if  not  an 
utter  violation  of  the  principle. 

In  Proctor  v.  Nicholson^  it  is  said:  ''The  landlord  of  an  inn 
may  supply  whatever  things  the  guest  orders,  and  the  guest  is 
bound  to  pay  for  them,  provided  the  guest  be  possessed  of  his 
reason  and  is  not  an  infant.  In  either  of  these  latter  cases  the 
landlord  must  look  to  himself."  The  question,  however,  as  to 
what  are  necessaries  is  more  or  less  uncertain  and  difficult  of 
determination;  it  is  a  question  for  the  jury,  to  be  determined 
under  all  the  circumstances  of  the  case  under  the  direction  of 
the  court. 

§  379.  The  property  of  third  persons. — The  English  rule 
seems  to  have  been  followed  by  the  courts  in  some  instances, 
though  it  would  seem  not  to  have  been  very  wisely  reasoned  out. 
This  rule  is,  that  because  of  the  exceptional  liability  of  the  inn- 
keeper, approaching  almost  that  of  an  insurer  of  the  goods 
brought  within  the  inn  by  the  guest,  and  because  the  law  makes 
it  incumbent  upon  him  to  receive  the  goods  of  the  traveler  or 
guest,  that  therefore  he  may  have  a  lien  for  his  compensation 
upon  whatever  goods  or  property  is  brought  by  the  guest  into 
the  inn  and  placed  in  the  custody  of  the  innkeeper,  without  ref- 
erence to  the  question  of  ownership ;  and,  indeed,  the  courts  have 
gone  so  far  as  to  hold  that  the  innkeeper  may  even  have  a  lien 
upon  the  property  brought  within  the  inn  by  the  guest,  although 
it  be  property  stolen  by  the  guest,  if  the  innkeeper  has  no 
knowledge  of  that  fact  and  receives  it  into  his  custody  on  the 
faith  of  the  innkeeping  relation. 

The  most  vigorous  discussion  and  contention  for  this  English 
rule  may  be  found  in  the  case  of  Robins  &  Co.  v.  Gray.''  In 
that  case  the  court  say:  "I  have  no  doubt  about  this  case.  I 
protest  against  being  asked,  upon  some  new  discovery  as  to  the 
law  of  innkeeper's  lien,  to  disturb  a  well-known  and  very  large 
business  carried  on  in  this  country  for  centuries.  The  duties, 
liabilities  and  rights  of  innkeepers  with  respect  to  goods  brought 
to  inns  by  guests  are  founded,  not  upon  bailment,  or  pledge,  or 

«7  Car.  &  P.  67.  7  L.  R.  2  Q.  B.  Div.   (1895),  501,  503. 


376  INNKEEPERS  AND  BOARDING-HOUSE  KEEPER.  [§    379. 

contract,  but  upon  the  custom  of  the  realm  with  regard  to  inn- 
keepers. Their  rights  and  liabilities  are  dependent  upon  that, 
and  that  alone;  they  do  not  come  under  any  other  head  of  law. 
What  is  the  liability  of  an  innkeeper  in  this  respect  ?  If  a  trav- 
eler comes  to  an  inn  with  goods  which  are  his  luggage  —  I  do 
not  say  his  personal  luggage,  but  his  luggage, —  the  innkeeper 
by  the  law  of  the  land  is  bound  to  take  him  and  his  luggage  in. 
The  innkeeper  cannot  discriminate  and  say  that  he  will  take  in 
the  traveler  but  not  his  luggage.  If  the  traveler  brought  some- 
thing exceptional  which  is  not  luggage  —  such  as  a  tiger  or  a 
package  of  dynamite, —  the  innkeeper  might  refuse  to  take  it 
in;  but  the  custom  of  the  realm  is  that,  unless  there  is  some 
reason  to  the  contrary  in  the  exceptional  character  of  the  things 
brought,  he  must  take  in  the  traveler  and  his  goods.  He  has 
not  to  inquire  whether  the  goods  are  the  property  of  the  person 
who  brings  them  or  of  some  other  person.  If  he  does  so  in- 
quire, the  traveler  may  refuse  to  tell  him,  and  may  say,  'what 
business  is  that  of  yours?  I  bring  the  goods  here  as  my  lug- 
gage, and  I  insist  upon  your  taking  them  in;'  or  he  may  say, 
'they  are  not  my  property,  but  I  bring  them  here  as  my  lug- 
gage, and  I  insist  upon  your  taking  them  in ; '  and  then  the  inn- 
keeper is  bound  by  law  to  take  them  in.  Again,  suppose  the 
things  brought  are  such  things  as  the  innkeeper  is  not  bound  to 
take  in ;  he  may,  as  I  have  said,  refuse  to  take  them  in  although 
the  traveler  demands  that  they  shall  be  taken  in  as  his  luggage ; 
but  if  after  that  the  innkeeper  changes  his  mind  and  does  take 
them  in,  then  they  are  in  the  same  position  as  goods  properly 
offered  to  the  innkeeper  according  to  the  custom  of  the  realm. 
Then  the  innkeeper's  liability  is  not  that  of  a  bailee  or  pledgee 
of  goods;  he  is  bound  to  keep  them  safely.  It  signifies  not,  so 
far  as  that  obligation  is  concerned,  if  they  are  stolen  by  burg- 
lars, or  by  the  servants  of  the  inn,  or  by  another  guest;  he  is 
liable  for  not  keeping  them  safely  unless  they  are  lost  by  the 
fault  of  the  traveler  himself.  That  is  a  tremendous  liability; 
it  is  a  liability  fixed  upon  the  innkeeper  by  the  fact  that  he  has 
taken  the  goods  in ;  and  by  law  he  has  a  lien  upon  them  for  the 
expense  of  keeping  them  as  well  as  for  the  cost  of  the  food  and 
entertainment  of  the  traveler.  By  law  that  lien  can  be  en- 
forced, not  only  against  the  person  who  has  brought  the  goods 
into  the  inn,  but  against  the  real  and  true  owner  of  them.  That 
has  been  the  law  for  two  or  three  hundred  years;  but  to-day 


§    379.]  COMPENSATION  AND  LIEN   OF  INNKEEPER.  377 

some  expressions  used  by  judges,  and  some  questions  —  imma- 
terial, as  it  seems  to  me  —  which  have  been  left  to  juries,  are  re- 
lied on  to  establish  that  if  the  innkeeper  knows  that  the  goods 
are  not  the  goods  of  the  person  who  brings  them  to  the  inn,  he 
may  refuse  to  take  them  in ;  or,  if  he  does  take  them  in,  he  has 
no  lien  upon  them.  One  cannot  help  asking,  What  is  his  lia- 
bility supposed  to  be  if  he  does  take  in  goods  under  such  cir- 
cumstances? It  must  be  borne  in  mind  that  goods  brought  into 
an  inn  are  not  exclusively  in  the  possession  of  the  innkeeper; 
the  person  who  brings  them  may  deal  with  them;  he  may  take 
them  out  of  a  box  in  a  room  or  passage  without  the  knowledge 
of  the  innkeeper,  though  the  latter  is  bound  to  see  that  no  one 
else  interferes  with  them.  Now,  is  there  any  decided  case  in 
which  it  has  been  held  that,  although  goods  have  been  brought 
to  an  inn  as  the  luggage  of  the  traveler  and  received  as  such 
by  the  innkeeper,  he  has  no  lien  upon  them  if  he  knows  that 
they  are  not  the  goods  of  the  traveler?  There  is  not  one  such 
case  to  be  found  in  the  books." 

In  the  case  of  Gordon  v.  Silver^  the  court  say:  "By  the  com- 
mon law  of  England  every  person  who  keeps  a  common  inn  is 
under  an  obligation  to  receive  and  afford  proper  entertainment 
to  every  one  who  offers  himself  as  a  guest,  if  there  be  sufficient 
room  for  him  in  the  inn,  and  no  good  reason  for  refusing  him. 
The  innkeeper  is  under  an  obligation  to  keep  the  goods  of  a 
guest  received  into  the  inn  safely  and  securely,  and  can  be  used 
and  made  liable  in  damages  if  he  fails  in  this  respect.  As  a 
compensation  for  the  burden  thus  imposed  upon  him,  the  law 
has  given  him  a  lien  upon  the  goods  of  the  guest  until  he  dis- 
charges the  expenses  of  his  lodging  and  food.  If  the  guest  has 
brought  goods  to  the  inn  to  which  he  has  no  title,  this  will  not 
deprive  the  innkeeper  of  his  lien,  because  he  is  obliged  to  receive 
the  guest  without  inquiries  as  to  his  title.  It  seems,  therefore, 
that  the  lien  is  commensurate  with  the  obligation  to  receive  the 
guest  and  to  keep  safely  and  securely  his  goods.  The  right 
of  lien  of  an  innkeeper  depends  upon  the  fact  that  the  goods 
came  into  his  possession  in  his  character  of  innkeeper,  as  belong- 
ing to  a  guest." 

Other  English  cases  might  be  cited;  and  there  seems  to  be  no 
variation  as  to  the  holding  of  the  English  courts.  American 
courts  have  also  followed  the  English  rule. 

8L.  R.  25  Q.  B.  (1890),  491,  492. 


378  INNKEEPERS  AND  BOARDING-HOUSE  KEEPER.  [§    379. 

In  an  early  case,  Grinnell  v.  Cook,^  a  New  York  case,  the 
court  say:  "The  innkeeper  is  bound  to  receive  and  entertain 
travelers  and  is  answerable  for  the  goods  of  the  guest,  although 
they  may  be  stolen  or  otherwise  lost  without  any  fault  on  his 
part.  Like  a  common  carrier  he  is  in  insurer  of  the  property, 
and  nothing  but  the  act  of  God  or  the  public  enemy  would  ex- 
cuse a  loss.  On  account  of  this  extraordinary  liability  the  law 
gives  the  innkeeper  a  lien  upon  the  goods  of  the  guests  for  the 
satisfaction  of  his  reasonable  charges.  It  was  once  held  that  he 
might  detain  the  person  of  the  guest,  but  that  doctrine  is  now 
exploded,  and  the  lien  is  confined  to  the  goods.  The  inquiry 
then  is  whether  the  plaintiff  received  and  kept  the  horses  as  an 
innkeeper.  In  other  words,  was  he  bound  to  receive  and  take 
care  of  them,  and  would  he  have  been  answerable  for  the  loss 
if  the  horses  had  been  stolen  without  any  negligence  on  his  part  ? 
The  lien  and  the  liability  must  stand  or  fall  together.  Inn- 
keepers cannot  claim  the  one  with  any  just  expectation  of  escap- 
ing the  other." 

And  in  a  Minnesota  case.  Singer  Mfg.  Co.  v.  Miller,^^  it  seems 
to  have  been  conceded  by  counsel  without  argument  that  this 
is  the  prevailing  rule.  The  court  say:  "The  plaintiff's  coun- 
sel does  not  seriously  contest  the  proposition  that  an  innkeeper 
may  have  such  lien  on  the  goods  in  the  possession  of  his  guest 
infra  hospitium.,  though  they  belong  to  a  third  person,  provided 
the  innkeeper  has  no  notice  of  that  fact.  If  the  innkeeper's  lia- 
bility would  attach  in  case  the  sewing-machine  was  lost  or  stolen, 
it  would  seem  but  just  to  hold  that  his  lien  attaches  whenever 
there  is  a  corresponding  liability." 

The  supreme  court  of  Wisconsin,  without  opposition  of  coun- 
sel, seems  to  concede  the  English  rule,  but  in  the  case  cited  the 
property  was  lawfully  in  the  possession  of  the  guest  as  the  agent 
and  traveling  salesman  of  the  owner.^^ 


93  Hill   (N.  Y.),  485,  488.  within  the  inn  by  a  guest,  which 

10  52  Minn.  516,  518,  21  L.  R.  A.  he  had  stolen,  would  be  subject 
229,  and  note,  where  authorities  to  the  innkeeper's  lien,  even 
are  collected.  though  claimed  by  the  true  owner; 

11  Manning    v.    Hollenbeck,     27  and    in    that    case    the    court   al- 
Wis.   202.     A  most  extreme  case  lowed  the  property  to  be  sold  and 
may  be  found  in  Black  v.   Bren-  the  amount  received  to  be  applied 
nan,  5  Dana  (Ky.),  311,  where  the  upon  the  innkeeper's  claim, 
court  held  that  property  brought 


§    379.]  COMPENSATION  AND   LIEN   OF  INNKEEPER.  379 

In  Oregon,  the  court,  in  Cook  v.  Ka}ie,^^  declare  this  to  be  the 
common-law  rule;  that  it  is  not  restricted  to  the  ordinary  bag- 
gage or  luggage  of  the  guest.  The  court  say:  "Whatever  con- 
troversy may  exist  in  the  judicial  mind  as  to  the  true  measure 
of  the  innkeeper's  responsibility,  it  cannot  be  denied  that  his 
liability  for  the  loss  of  the  goods  of  his  guest  is  extraordinary 
and  exceptional.  Compelled  to  afford  entertainment  to  whom- 
soever may  apply  and  behave  with  decency,  the  law  as  an  in- 
demnity for  the  extraordinary  liabilities  which  it  imposes  has 
clothed  the  innkeeper  with  extraordinary  privileges.  It  gives 
him  as  a  security  for  unpaid  charges  a  lien  upon  the  property 
of  his  guest,  and  upon  the  goods  put  by  the  guest  into  his  pos- 
session. Nor  is  the  lien  confined  to  property  only  owned  by  the 
guest,  but  it  will  attach  to  the  property  of  third  persons  for 
whom  the  guest  is  bailee,  provided  only  he  received  the  prop- 
erty on  the  faith  of  the  innkeeping  relation.  But  the  lien  will 
not  attach  if  the  innkeeper  knew  the  property  taken  in  his  cus- 
tody was  not  owned  by  his  guest,  nor  had  any  right  to  deposit  it 
as  bailee  or  otherwise,  except,  perhaps,  some  proper  charge  in- 
curred against  the  specific  chattels." 

In  this  case,  however,  there  seems  to  be  some  comfort  and 
good  reasoning  in  the  dissenting  opinion  by  Judge  Thayer,  who, 
at  page  491,  says:  "Upon  the  main  question  in  the  case  there 
is  some  doubt  in  view  of  the  authorities  upon  the  subject,  though 
upon  a  common-sense  view  there  would  not  seem  to  be  any. 
That  the  man  could  pledge  the  appellant's  property  for  his  own 
hotel  bill,  or  in  any  way  subject  it  to  the  payment  thereof,  would 
shock  all  sense  of  property  right.  Respondent's  counsel,  how- 
ever, have  cited  numerous  cases  where  such  a  lien  has  attached 
to  the  property  of  a  third  person,  and  I  have  no  doubt  that 
such  lien  will  in  many  cases  attach  to  the  property  taken  by  the 
guest  to  the  inn  at  which  he  obtains  accommodation,  though  he 
is  not  the  owner  of  it.  But  in  such  cases  it  seems  to  me  the 
property  must  derive  some  special  benefit  or  else  the  owner  must 
have  intrusted  it  to  a  party  under  circumstances  from  which 
he  could  reasonably  have  concluded  that  the  party  would  be- 
come the  guest  of  an  inn  and  take  the  property  with  him  there 
as  his  own,  and  I  do  not  think  the  rule  should  extend  further 

12  13  Oreg.  482. 


380  INNKEEPERS  AND  BOAEDING-HOUSE  KEEPER.  [§    381. 

than  this."  And  in  Domestic  Sewing  Machine  Co.  v.  Waiters  ^' 
the  court  has  broken  away  from  this  English  rule  and  based  an 
opinion  somewhat  upon  reason,  holding  that  the  innkeeper  has 
no  lien  on  the  goods  in  possession  of  his  guest  as  against  the 
true  owner,  unless  there  be  charges  upon  the  specific  article  on 
which  the  lien  is  claimed. 

§  380.  .     The  further  consideration  of  the  cases  and  the 

law  of  the  subject  logically  divides  itself  into  three  distinct 
classes,  namely: 

(1)  Where  the  guest  in  possession  of  the  property  is  the  ser- 
vant, agent,  or  bailee  of  the  owner. 

(2)  Where  the  property  in  possession  of  the  guest  is  animate. 

(3)  Where  the  guest  in  possession  of  the  property  is  a  wrong- 
doer in  respect  to  it,  having  obtained  possession  of  it  without 
the  consent  of  the  owner  —  a  trespasser  or  a  thief. 

§  381.  The  guest  a  servant,  agent,  or  bailee  of  the  owner. — 
Where  the  guest  is  a  servant,  agent,  or  bailee  of  the  owner  of 
the  property,  and  engaged  in  the  business  of  the  owner  —  as, 
for  example,  a  traveling  salesman, —  and  carries  the  goods  into 
the  inn,  and  in  the  course  of  the  business  of  his  principal  the 
property  is  in  the  care  and  custody  of  the  innkeeper  in  his  inn- 
keeping  relation,  his  right  to  have  the  lien  attach  to  secure  his 
compensation  would  seem  to  rest  upon  good  legal  reasoning ;  for 
if  the  guest  is  a  servant  of  the  owner,  and  the  relation  of  inn- 
keeper and  guest  is  created  at  a  time  when  the  servant  is  en- 
gaged in  the  service  of  the  owner,  or  at  a  time  when  a  bailee  is 
pursuing  the  object  of  the  bailment  for  the  benefit  of  the  o^^ner, 
the  owner  knowing  the  facts  in  such  cases,  it  might  be  said  that 
the  owner  impliedly  consented  that  his  property  should  be  sub- 
jected to  the  lien  of  the  innkeeper  in  case  his  compensation  was 
not  paid,  for  such  a  situation  might  be  well  said  to  be  an  incident 
to  the  relation  into  which  the  owner  has  entered.  Very  many 
of  the  eases  involve  sueli  a  state  of  facts. ^* 

13  50  Ga.  573;  Wycoff  v.  South-  Am.  &  Eng.  Ann.  Cas.  a  number 
ern   Hotel   Co.,    24   Mo.   App.    382.  of  cases  are  collected  holding  that 

14  In  Wertheimer,  etc.,  Co.  v.  the  innkeeper  has  a  coramon-law 
Hotel  Stevens  Co.,  38  "Wash.  409,  lien  upon  the  goods  of  the  guest 
3  Am.  &  Eng.  Ann.  Cas.  625,  the  brought  to  his  inn  for  board  and 
right  of  the  innkeeper  to  lien  lodging  furnished,  although  the 
upon  samples  of  a  third  party  in  goods  may  be  the  property  of  an- 
possession  of  traveling  salesman  other.  Citing  Polk  v.  Melen- 
is  considered.  And  in  a  note  in  3  backer,     136    Mich.    611;     Singer 


§    383.]  COMPENSATION  AND  LIEN   OF  INNKEEPER.  381 

§  382.  Where  the  property  is  animate. — There  is  greater  rea- 
son, perhaps,  for  giving  to  the  innkeeper  a  lien  upon  animate 
property,  such  as  horses  or  other  animals,  which  are  taken  to 
the  inn  by  the  agent  or  servant  of  the  owner  in  the  transac- 
tion of  and  in  the  course  of  business  for  the  owner  and  left  with 
the  innkeeper  in  his  innkeeping  relation;  for  in  such  case  the 
subject  of  the  lien  must  have  its  keeping  and  care,  and  there  is  a 
direct  benefit  derived  therefrom  by  the  owner  of  the  property, 
and  the  lien  would  no  doubt  attach. 

§  383.  Where  the  guest  has  wrongfully  possessed  himself  of 
the  property. — But  where  the  guest  has  wrongfully  possessed 
himself  of  the  property,  it  would  do  violence  to  every  principle 
of  the  rights  of  ownership  of  property  to  allow  a  lien  to  attach 
for  the  keep  and  entertainment  of  the  guest  at  the  inn,  or  for 
keep  of  the  property  whether  animate  or  inanimate.  As,  for 
example,  in  case  of  stolen  property,  how  can  it  be  said  that,  con- 
sistently with  the  rights  of  ownership  of  property,  a  thief  can 
steal  and  carry  away  the  property  of  another,  and  although  he 
has  no  title  whatever  that  can  be  asserted  against  the  rightful 
owner,  yet  he  can  by  taking  it  to  a  hotel,  and  himself  becoming 
a  guest  and  failing  to  pay  the  compensation  due  the  hotel  keeper, 
confer  upon  the  innkeeper  a  lien  upon  the  property  paramount 
to  that  of  the  absolute  owner?     Such  a  doctrine  would  violate 


Mfg.  Co.  V.  Miller,  52  Minn.  576.  they  were  the  property  of  the  em- 
And  under  a  statute  in  Iowa  all  ployer,  but  he  received  them  as 
property,  even  if  known  to  be  baggage  of  the  traveler,  who  sub- 
samples  not  belonging  to  traveler.  sequently  left  them  in  the  inn 
Brown  Shoe  Co.  v.  Hunt,  103  without  paying  his  bill  for  board 
Iowa,  586.  And  in  Ga.  Domestic,  and  lodging.  So  in  the  case  of 
etc.  Co.  V.  "Walters,  50  Ga.  573.  Manning  v.  Hollenbeck,  27  Wis. 
The  case  of  Robins  &  Co.  v.  202.  This  was  a  case  of  a  corn- 
Gray,  L.  R.  (1895),  2  Q.  B.  Div.  mercial  traveler,  a  guest  at  the 
501,  was  one  of  a  commercial  inn,  and  the  property  was  a  trunk 
traveler  employed  by  a  firm  who  of  samples  belonging  to  his  prin- 
dealt  in  sewing  machines.  He  cipal.  R.  L.  Polk  Ca.  v.  Mel- 
stopped  at  the  inn,  and  while  becker,  136  Mich.  611,  99  N.  W. 
there  machines  were  sent  to  him  867;  Cook  v.  Kane,  13  Or.  482,  57 
by  his  employers,  and  in  the  or-  Am.  R.  28,  11  Pac.  226.  On  a 
dinary  course  of  business,  for  the  piano  bought  on  credit,  stipulating 
purpose  of  selling  them  to  cus-  title  to  remain  in  vendor.  Horace 
tomers  in  the  neighborhood.  Be-  Waters  &  Co.  v.  Gerard.  94  N.  Y. 
fore  the  goods  were  so  sent  the  S.  702. 
innkeeper  had  express  notice  that 


382  INNKEEPERS  AND  BOARDING-HOUSE   KEEPER.  [§    383. 

every  principle  of  right  and  justice  and  the  laws  governing  the 
title  to  property. 

What  becomes  of  that  legal  right  which  protects  every  man 
in  the  enjoyment  of  his  own  —  that  he  may  retake  it  wherever 
he  may  find  it  if  he  has  been  feloniously  deprived  of  it?  It  is 
hardly  an  answer  to  say  that  because  the  innkeeper  is  by  law 
compelled  to  receive  a  guest  who  comes  to  his  inn,  if  he  is  a 
proper  person  and  he  has  room  and  can  take  care  of  his  baggage 
and  property  brought  within  the  inn,  that  he  is  entitled  to  a 
lien  upon  the  property  he  brings  into  the  inn ;  for  in  this  case  it 
would  be  paramount  to  holding  that  he  is  entitled  because  of 
this  to  deprive  a  legal  owner  of  his  title  to  property  which  has 
been  stolen  by  the  guest.  In  connection  with  this  contention 
it  should  be  remembered  that  the  innkeeper  is  not  compelled 
to  receive  a  guest  and  render  service  to  him  as  an  innkeeper  and 
depend  upon  receiving  compensation  therefor  when  the  guest 
shall  leave  his  house ;  he  may  insist  upon  his  legal  right  that  the 
guest  pay  for  the  entertainment  in  advance.  So  it  is  not  a 
case  where  the  innkeeper's  only  relief  is  his  right  to  a  lien  upon 
the  property  which  the  guest  brings  into  the  inn.  In  discuss- 
ing this  matter  it  would  seem  that  a  number  of  the  courts  have 
blindly  followed  the  earlier  English  cases,  without  discussing  the 
reason  of  the  rule  which  they  adopted;  but  adopting  it  rather 
by  way  of  following  adjudicated  cases  than  by  the  exercise  of 
good  judgment. ^^ 

"When  we  stop  to  consider  that  builded  into  that  great  funda- 
mental law  of  the  land,  the  constitution,  is  the  assurance  to  every 
citizen  that  he  shall  not  be  deprived  of  his  property  without 
"due  process  of  law,"  and  that  this  bulwark  of  right  cannot  be 
set  aside,  altered  or  changed,  either  generally  or  specially,  by 
courts  or  executive  oflScers,  or  by  legislatures,  the  rule  under 
discussion  and  contended  for  by  some  of  the  English  courts 
would  seem  to  be  utterly  antagonistic  to  the  rights  of  property 
vouchsafed  to  every  American  citizen.  We  are  therefore,  be- 
cause of  these  observations,  constrained  to  say  that  the  law  in 
this  country  will  not  give  to  the  innkeeper  a  lien  for  his  com- 
pensation upon  the  property  of  third  persons  brought  by  the 
guest  into  the  inn,  except  there  exists  a  relation  between  the 
guest  and  owner  like  that  of  master  and  servant,  principal  and 

15  Domestic,  etc.  Co.  v.  Walters,  50  Ga.  573. 


§    383.]  COMPENSATION   AND   LIEN   OF  INNKEEPER.  383 

agent,  or  possibly  bailor  and  bailee,  and  that  at  the  time  the 
guest  be  engaged  in  the  use  of  the  property  in  the  carrying  out 
of  the  particular  relation;  and  that  this  applies  as  well  to  ani- 
mate as  inanimate  property. 

We  are  aware  that  this  English  rule  has  been  quite  largely 
adopted  by  the  courts  of  this  country,  but  it  seems  to  us  that 
the  arguments  and  reasoning  of  the  court  in  arriving  at  a  con- 
clusion that  even  property  which  has  been  stolen  and  taken  to 
an  inn  by  a  guest  can  be  subjected  to  a  lien  of  a  landlord  is 
not  in  accord  with  our  American  system;  it  certainly  must  be 
held  to  run  counter  to  that  provision  of  the  constitution  to  which 
we  have  already  called  attention. 

The  court  of  appeals  in  the  state  of  Missouri  have  written 
somewhat  vigorously  upon  this  proposition.  The  opinion  is  by 
Mr.  Justice  Thompson.  He  says:  "Nor  are  we  prepared  to 
agree  with  those  courts  which  have  found  a  plain  principle  of 
justice  in  a  rule  of  law  by  which  one  man's  property  is  confis- 
cated to  pay  another  man's  debts.  It  is,  to  say  the  least,  doubt- 
ful whether  the  extraordinary  liability  which  the  common  law 
imposed  upon  the  innkeeper  in  respect  of  goods  brought  to  his 
inn  by  his  guest  furnishes  a  good  reason  for  such  a  rule.  It  is 
also  doubtful  whether  such  a  rule  is  not  in  conflict  with  the 
spirit  of  those  guaranties  of  the  right  of  private  property  which 
are  embodied  in  American  constitutions.  It  would  be  beyond 
the  power  of  the  legislature  to  pass  a  law  under  which  the  prop- 
erty of  one  man  should  be  arbitrarily  taken  from  him  and  given 
to  another  man.  If  the  legislature  could  not  pass  such  a  law, 
we  are  not  prepared  to  sanction  a  course  of  reasoning  by  which 
the  conclusion  is  arrived  at  that  the  legislature  intended  to  pre- 
serve such  a  rule  of  the  common  law,  by  enacting  a  statute,  the 
terms  of  which,  read  in  accordance  with  their  sense,  import  the 
contrary.  Again,  the  liability  of  a  common  carrier  at  common 
law  is  precisely  that  of  an  innkeeper.  He  is  liable  for  the  loss 
or  damage  of  the  goods  committed  to  him  for  carriage  happen- 
ing from  every  other  cause  except  the  act  of  God  or  the  public 
enemy.  Both  the  liability  of  the  carrier  and  that  of  the  inn- 
keeper were  grounded  at  common  law  upon  what  was  called  the 
'custom  of  the  realm.'  They  were  co-extensive  with  each  other, 
had  their  origin  in  the  same  source,  and  rested  upon  the  same 
consideration  of  public  policy.  And  yet  modern  American 
courts  have  not  hesitated  to  declare  that  a  common  carrier  has 


384  INNKEEPERS  AND  BOARDING-HOUSE   KEEPER.  [§    385. 

no  lien  for  the  carriage  of  goods,  which  he  has  innocently  re- 
ceived from  a  wrong-doer,  without  the  consent  of  the  owner,  ex- 
press or  implied.  Upon  the  whole,  we  are  satisfied  that  the  lien 
of  an  hotel  or  innkeeper  does  not  exist  in  this  state  in  such  a 
case  as  the  present. ' '  ^® 

§  384.  The  lien  of  the  innkeeper  fixed  by  statute, — In  almost 
all  of  the  states  the  lien  of  the  hotel  keeper  upon  the  goods  and 
property  of  the  guest  for  his  compensation  is  fixed  and  regu- 
lated by  statute,  and  by  statute  the  procedure  for  foreclosing 
the  lien  is  also  provided.  At  common  law  the  innkeeper  could 
not  sell  the  property  and  thus  realize  the  amount  of  his  com- 
pensation except  by  a  proceeding  in  chancery,  but  now  the  stat- 
utes of  the  states  generally  provide  for  a  sale  from  which  an 
amount  may  be  realized  to  satisfy  the  expenses  of  the  sale,  the 
amount  of  compensation  due  the  innkeeper,  if  sufficient  is  ob- 
tained, and  the  balance,  if  any,  be  returned  to  the  owner. 

§  385.  The  lien  lost  or  waived. — The  lien  of  the  innkeeper 
may  be  lost  or  waived  in  the  several  ways  already  discussed.^'^ 

(1)  By  a  tender  to  the  innkeeper  of  his  proper  charges. 

(2)  By  the  innkeeper,  upon  demand  of  the  property,  placing 
his  refusal  to  deliver  it  upon  some  other  grounds  than  that  of 
the  non-payment  of  his  compensation  and  his  lien  upon  the 
goods.^^ 

(3)  By  an  agreement  to  give  credit  to  the  guest,  because  such 
an  agreement  would  be  inconsistent  with  the  enforcement  of  a 
lien." 

In  Stoddard  Mfg.  Co.  v.  Huntley  ^°  the  court  say :  ' '  The  oper- 
ation of  a  lien  is  to  place  the  property  in  pledge  for  the  pay- 
ment of  the  debt;  and  where  the  party  agrees  to  give  time  for 
payment,  or  agrees  to  receive  payment  in  a  particular  mode  in- 
consistent with  the  existence  of  such  a  pledge,  it  is  evidence,  if 
nothing  appears  to  the  contrary,  that  he  did  not  intend  to  rely 
upon  the  pledge  of  the  goods  in  relation  to  which  the  debt  arose 
to  secure  the  payment." 

lewyckoff    v.    Southern    Hotel  ^t  Ante,   §  72. 

Co.,    24    Mo.    App.    382;    Fitch    v.  i«  Hamilton     v.     McNulty,     145 

Newberry,     1     Doug.     (Mich.)     1;  Mass.  20. 

Robinson  v.   Baker,   5   Cush.   137;  is  McMasters     v.     Merrick,     41 

Stevens  v.  Boston  &  W.  R.  Corp.,  Mich.  505. 

8  Gray,  262;   Clark  v.  Lowell,  etc.  208  N.  H.  441. 
R.  Co.,  9  Gray,  231. 


§    387.]  COMPENSATION   AND  LIEN   OP  INNKEEPER.  385 

(4)  By  delivery  of  the  goods  to  a  tliird  party  with  an  agree- 
ment that  the  lien  is  to  continue.  This  would  discharge  the 
lien  unless  the  third  party  is  under  the  control  of  the  innkeeper. 
If  such  party  were  his  servant  or  his  agent  in  the  transaction 
of  the  particular  business,  and  in  such  case  it  would  not  be  a 
release  of  the  possession  of  the  property  and  the  lien  would  not 
be  waived ;  but  if  it  were  a  person  over  whom  the  innkeeper  had 
no  control,  it  would  be  a  waiver  of  the  lien.  Possession  is  es- 
sential to  the  existence  of  the  lien,  and  when  it  is  voluntarily 
surrendered  the  lien  must  necessarily  fail. 

(5)  A  wrongful  sale  or  pledge  by  the  innkeeper  would  destroy 
the  lien,  but  a  lien  acquired  by  a  partnership  would  not  be  lost 
by  a  dissolution  of  the  partnership  and  an  assignment  of  the  in- 
terest of  one  of  the  partners  to  the  other. 

§  386.  Cannot  be  revived. — If  the  innkeeper  once  parts  with 
the  possession  of  the  property  voluntarily,  or  loses  or  waives  the 
lien  in  any  of  the  ways  we  have  noticed,  the  lien  cannot  be  re- 
vived by  again  assuming  possession  of  it,  unless  he  has  been  de- 
prived of  the  lien  by  fraud  or  misrepresentation  of  the  guest  and 
has  repossessed  himself  of  the  property  before  there  are  any  in- 
tervening rights,  as  that  of  innocent  purchasers,  mortgagees  or 
assignees.^^ 

§  387.  Boarding-house  keeper. — The  right  of  lien  is  not  ex- 
tended to  boarding-house  keepers.  There  are,  however,  statutes 
in  force  in  many  of  the  states  which  confer  upon  boarding-house 
keepers  right  which  are  substantially  the  same  as  the  rights  of 
innkeepers.^^ 

21  Robinson  v.  Larrebee,  63  Me.  651;  Hursh  v.  Buyers,  29  Mo.  469 
116;  Manning  v.  Hollenbeck,  27  Cross  v.  Wilkins,  43  N.  H.  332 
Wis.  202;  Hickman  v.  Thomas,  16  Nichols  v.  Holliday,  27  Wis.  406 
Ala.  666.  Mills  v.  Shirley,  110  Mass.  158. 

22  Pollect    V.    Landis,    36    Iowa, 

25 


PAET  FOUETH 


POSTOFFICE  DEPARTMENT 


CHAPTER  I. 

POSTAL  SERVICE. 


§  388.  Liability    of    postoffice    de- 
partment. 
389.  Postmasters. 


§  390.  Liability. 

391.  Carriers  of  mail. 


§  388.  Liability  of  postoffice  department. — One  of  the  excep- 
tional bailments  recognized  by  the  law  is  that  of  receiving,  carry- 
ing and  delivering  the  mail.  The  mail  service  of  the  country  is 
intrusted  to  the  postoffice  department  of  the  government;  it  is 
under  its  general  supervision  and  control ;  and  while  in  the  per- 
formance of  the  duties  connected  with  the  mail  service,  not  only 
letters  and  packages  that  may  be  properly  denominated  as  mail 
matter,  but  large  quantities  of  merchandise,  are  received  and 
carried.  But  it  can  hardly  be  said  that  the  relation  of  a  com- 
mon carrier  of  goods  exists;  it  is  more  in  the  nature  of  a  bail- 
ment for  hire.  While  there  is  a  small  sum  paid  for  the  carriage 
by  way  of  postage,  it  is  not  an  amount  paid  for  the  services, 
nor  considered  as  adequate  or  reasonable,  but  rather  an  amount 
paid  to  the  government  to  aid  and  support  the  whole  system  of 
postal  service ;  it  is  a  dealing  with  the  government  whose  agencies 
are  employed  to  do  the  particular  service. 

While  the  postoffice  department  in  a  way  is  responsible  for 
the  services  and  the  property  carried,  it  cannot  be  sued  by  the 
owner  of  the  mail  package,  even  if  it  were  lost,  or  failed  to  be 
delivered,  because  it  is  a  department  of  the  government  that  is 
engaged  in  the  service  and  cannot  be  sued  without  its  consent. 
It  is  the  government  itself  that  undertakes  the  carr^dng  of  the 
mail  through  its  agents  and  servants,  and  any  misconduct  or 
failure  of  performance  of  duty  on  its  part  must  be  corrected  by 


388  POSTOFFICE  DEPARTMENT.  [§    390. 

an  investigation  of  that  department  carried  on  by  the  govern- 
ment or  its  representatives. 

§  389.  Postmasters. — Postmasters,  their  assistants  and  clerks, 
appointed  and  sworn  as  required  by  law,  are  public  officers 
through  whom  the  service  of  receiving  and  forwarding  the  mails 
is  more  directly  carried  on ;  for  any  dereliction  in  duty  they  are 
responsible  to  the  government,  and  liable  upon  their  bonds  exe- 
cuted as  required  by  the  postal  laws.  But  while  they  are  under 
this  direct  liability  to  the  general  government,  there  is  no  doubt 
a  liability  to  the  individual  who  sends,  or  is  entitled  to  receive, 
mail  through  the  particular  office  over  which  these  officers  are 
installed.  They  owe  to  the  public  and  to  the  government  a  duty 
to  use  at  least  ordinary  diligence  in  receiving  and  forwarding 
or  properly  delivering  the  mail.  The  great  importance  of  the 
business  with  which  they  are  intrusted  enhances  that  duty; 
through  these  officers,  as  is  well  known  and  understood,  are  sent 
not  only  important  communications  requiring  care  and  diligence 
in  their  protection  and  proper  delivery,  but  often  property  and 
money  of  considerable  amount  and  value.  Every  person's  mail 
is  sacred  to  him,  and  he  is  entitled  to  its  first  possession  and 
perusal.  This  right  and  individual  privilege  is  vouchsafed  to 
him  by  the  constitution  and  statutes  of  the  United  States,  and  so 
the  general  department  of  government  cannot  be  held  liable  for 
the  reasons  mentioned.  T\nienever  the  loss,  or  breach  of  duty  re- 
sulting in  loss,  can  be  traced  to  one  of  these  officers  of  the  de- 
partment, the  postmaster,  his  assistants  or  clerks  commissioned 
by  the  government,  or  to  their  servants  or  agents,  the  individual 
officer  guilty  of  the  negligence  or  breach  of  duty  may  be  held 
liable  for  the  damages  resulting  therefrom.  In  Keenan  v. 
Southworth  ^  Mr.  Justice  Grey,  in  rendering  the  opinion,  said : 
"The  law  is  well  settled  in  England  and  America  that  the  post- 
master-general, the  deputy  postmasters  and  their  assistants  and 
clerks  appointed  and  sworn  as  required  by  law,  are  public  of- 
ficers, each  of  whom  is  responsible  for  his  own  negligence  only, 
and  not  for  that  of  any  of  the  others,  although  selected  by  him 
and  subject  to  his  orders." 

§  390.  Liability. — From  what  has  already  been  said  it 

will  be  noticed  that  the  liability  of  the  postmaster,  whenever  he 

illO    Mass.    474,    14    Am.    Rep.       (U.  S.),  242;   Schuler  v.  Lynch,  8 
613;  Lane  v.  Cotton,  1  Ld.  Raym.       Watts   (Pa.),  453. 
646;  Dunlop  v.  Monroe,  7  Cranch 


§  390.]  POSTAL  SERVICE.  389 

can  be  held  liable  for  the  loss  of  mail  or  mail  matter,  mu.st  rest 
entirely  upon  his  individual  negligence,  and  the  recovery  is  had 
upon  the  implied  contract  upon  his  part  to  perform  his  duty 
with  at  least  ordinary  diligence.  But  it  has  been  held  that  the 
plaintiff  in  order  to  recover  is  not  bound  to  prove  some  par- 
ticular act  of  negligence  in  relation  to  the  letter  or  the  package, 
and  that  the  loss  was  the  direct  consequence  of  that  particular 
negligence,  but  that  any  general  proof  of  negligence  tending  to 
show  that  the  loss  was  occasioned  thereby,  which  satisfies  the 
jury  that  it  was  so  occasioned,  is  sufficient  to  sustain  the  issue 
for  the  plaintiff.^ 

In  Schroyer  v.  Lynch  ^  the  court  say:  "Deputy  postmasters 
have  nothing  to  do  with  the  carrying  of  the  mail  by  means 
of  which  letters,  packets,  etc.,  are  conveyed  and  transmitted 
throughout  the  Union.  .  .  .  And  seeing  he  has  neither  the 
appointment  nor  the  control  of  those  who  do  carry  the  mail,  it 
v/ould  seem,  therefore,  impossible  that  he  should  be  made  liable 
as  a  common  carrier,  or  for  any  losses  or  injuries  saving  those 
arising  from  ordinary  neglect  on  his  part.  Ordinary  neglect, 
when  he  has  no  assistant  to  attend  to  and  perform  the  duties 
of  the  office,  may  consist  in  his  not  attending  to  the  perform- 
ance of  the  same  himself  in  person  with  reasonable  vigilance  and 
care;  or,  where  he  has  assistants  in  his  not  exercising  that  care 
and  diligence  towards  them  in  the  performance  of  the  duties 
assigned  to  them,  which  every  person  of  common  prudence  and 
capable  of  governing  a  family  takes  of  his  own  concerns;  and 
for  every  loss  occasioned  by  the  negligence  of  the  deputy  post- 
master in  this  respect,  I  apprehend  that  he  would  be  held  re- 
sponsible though  the  loss  should  be  produced  immediately  by  an 
accident,  or  a  force  that  could  not  be  avoided  or  resisted.  Be- 
yond this,  however,  as  I  conceive,  the  responsibility  of  a  deputy 
postmaster  does  not  extend." 

In  considering  and  summing  up  the  English  authorities  upon 
this  subject,  the  court  further  say:  "The  ground  of  these  de- 
cisions seems  to  be  that  the  postoffice  establishment  is  to  be  con- 
sidered as  an  engine  of  the  government  created  by  act  of  parlia- 
ment for  the  purpose  of  revenue  and  police,  and  that  the  persons 
employed  therein,  being  appointed  to  that  end  by  the  govern- 

2  Christie  v.  Smith,  23  Vt.  663;  sg  Watts  (Pa),  453. 

Danforth  v.  Grant,  14  Vt.  283. 


390  POSTOFFICE   DEPARTMENT.  [§    391. 

nient,  have  no  contracts  with  individuals  interested  in  their  serv- 
ices, either  express  or  implied,  which  would  render  them  liable 
to  the  latter  for  losses  occasioned  by  the  negligence  of  others, 
or  for  any  losses  sustained  other  than  those  arising  from  their 
own  default  or  neglect  of  duty;  but  for  losses  of  this  latter  de- 
scription it  is  clearly  settled  that  each  postmaster  is  liable  for  his 
own  neglect  or  delinquency. ' '  * 

In  Dunlap  v.  Monroe  ^  it  was  held  that,  in  order  to  make  a 
postmaster  liable  for  negligence,  it  must  appear  that  the  loss  or 
injury  sustained  by  the  plaintitf  was  the  consequence  of  the 
negligence,  and  that  in  order  to  make  out  such  negligence  it  is 
competent  to  give  in  evidence  the  negligence  of  his  assistant. 

§  391.  Carriers   of   mail. — Persons   carrying   the   mail 

upon  contract  or  appointment  are  employed  by  the  department 
of  the  government  having  supervision  of  the  mails,  and  are  an- 
swerable to  the  postoffice  department  for  any  breach  of  duty  of 
which  they  may  be  guilty,  upon  their  bond,  which  in  general 
must  be  given  and  which  recites  their  duties ;  but  outside  of  this 
liability  to  this  department  of  the  general  government  is  the 
same  liability  to  the  public  and  the  individual  that  has  been 
mentioned  and  discussed  in  what  has  been  said  of  postmasters. 
The  mail  carrier  may  be  made  liable  to  the  individual  for  the 
loss  of  letters  or  packages  whenever  it  can  be  proven  that  the 
loss  was  the  result  of  his  negligence.  Like  a  postmaster  he  is 
bound  to  exercise  at  least  ordinary  care  in  preserving  and  carry- 
ing the  mail  that  is  intrusted  to  his  care  and  keeping.® 

4  Browning  v.  Goodchild,  3  Wils.  private  carrier,  and   is  not  liable 

443;   Stock  v.  Harris,  3  Wils.  449,  to    the    owner    for    money    stolen 

450;    Whitfield    v.    La    Dispencer,  from    the    mails    by    his    subordi- 

Cowp.    765;    2    Kent's    Com.    610;  nates;    and    his    promissory    note 

Story  on  Bailm.,  302.  given  therefor  is  without  liability 

5?  Cranch  (U.  S.),  242.  as   between    the    parties.     Foster 

6  One    who    contracts    to    carry  v.  Metts,  55  Miss.  77,  30  Am.  Rep. 

the   mails   for   the  government  is  504. 
neither  a  common  carrier  nor   a 


PAET  FIFTH 


CARRIERS 


CHAPTER  I. 


CARRIERS— GENERALLY. 


§  392.  Definition. 

393.  As   to   the  history   of   car- 

riers. 

394.  The  importance  and  scope 

of  the  subject. 

395.  Carriers  strictly  a  bailment 

relation. 

396.  Carriers  are  of  two  kinds. 

397.  Private  or  special  carriers. 

398.  Duties  and  liabilities  of  pri- 

vate and  special  carriers. 

399.  The   carriage  of  goods,   or 

property,   or   passengers 
for  reward. 


§  400.  Increasing   or    diminishing 
liability  by  contract. 

401.  Can   he   diminish   lia- 
bility. 

402.  When  excused  from  liabil- 

ity if  no  contract. 

403.  Compensation   and   lien   of 

the  private  carrier. 

404.  Lien. 

405.  Special  or  private  carriers 

without  hire — Gratuitous 
service. 


§  392.  Definition. — A  carrier  is  defined  to  be  one  who  un- 
dertakes to  transport  persons  or  property  from  place  to  place 
either  with  or  without  reward. 

§  393.  As  to  the  history  of  carriers. — It  would  no  doubt  be 
interesting  and  perhaps  profitable  to  trace  the  history  of  carriers 
from  their  small  beginnings  through  the  earlier  and  interesting 
years  of  their  growth;  from  the  time  when  the  business  mainly 
consisted  in  transporting  packages  and  light  freight  by  pack 
animals  and  lumbering  vehicles  drawn  by  cattle  or  slow  coach 
teams ;  the  coming  into  use  of  the  early  coach  conveying  passen- 
gers, baggage  and  freight  to  and  from  the  great  metropolis  and 
other  points,  and  notice  the  favor  into  which  the  business  grew ; 
to  consider  the  history  of  transportation  by  water,  and  the  de- 
velopment of  that  great  trade  which  has  united  with  inseparable 


392  CARRIERS.  [§   395. 

bonds  the  interests  of  continents,  kingdoms  and  republics,  and  in 
a  measure  furnishing  them  their  means  of  defense;  the  intro- 
duction into  our  own  country  of  the  more  advanced  systems  of 
transportation  by  steamboats  and  railroads,  until  the  magnitude 
of  the  business  embraced  in  the  carrier  trade  is  almost  beyond 
comprehension;  but  we  are  not  able  to  do  so  at  this  time,  nor  is 
it  the  object  of  this  treatise ;  we  can  only  call  attention  to  it  by 
way  of  introduction. 

§  394.  The  importance  and  scope  of  the  subject. — There  is  no 
business  carried  on  by  men  of  these  days  that  does  not  touch 
upon  and  involve  more  or  less  the  subject  of  carriers.  The 
rumbling  wheels  of  trucks,  express  wagons  and  omnibus  lines 
through  the  streets  of  our  great  cities,  the  immense  docks,  ele- 
vators and  freight  depots  within  our  seashore  towns,  the  ports 
of  our  great  lakes  piled  high  with  freight,  goods  of  all  descrip- 
tions and  kinds,  the  palatial  steamers  transporting  thousands  of 
passengers,  all  but  speak  to  us  of  the  immensity  of  the  carrier 
trade;  for  out  from  these  ports  go  the  great  trunk  lines  of  rail- 
roads pushing  their  way  into  the  great  cities  augmenting  their 
business;  into  the  smaller  towns  increasing  their  market  facili- 
ties ;  across  the  rich  farms  and  prairies ;  through  the  rock-bound 
ridges  of  the  great  mountain  ranges,  and  beyond  to  the  coast  of 
oceans,  almost  as  a  thing  of  life ;  holding  within  their  grasp  the 
business  dastiny  of  nations;  conveying  the  products  of  a  conti- 
nent from  the  farthest  northern  boundaries  to  the  most  extreme 
southern  point;  from  the  far  east  to  the  far  west;  from  every 
business  point  to  the  great  markets  of  the  world. 

With  the  electric  telegraph  spark  we  speak,  and  the  producer 
of  the  west,  by  these  carrier  routes,  hands  his  product  of  farm 
and  mine  and  manufactory  to  the  producer  and  consumer  of 
the  east,  and  he  in  turn  on  through  wave  and  storm  of  ocean  to 
the  markets  and  consumers  of  the  old  world.  Nor  do  steamships 
and  vessels  and  railroads  compass  entirely  the  carrier  trade. 
Added  to  these  are  the  tens  of  thousands  of  smaller  carriers, 
transfer  lines,  expressmen,  truckmen,  even  down  to  the  little 
fellow  dressed  in  uniform  and  cap  who  delivers  packages  from 
house  to  house.  Who  can  define  and  comprehend  the  scope  and 
importance  of  our  subject? 

§  395.  Carriers  strictly  a  bailment  relation. — The  carriage  of 
freight  and  baggage  may  be  said  to  be  strictly  a  bailment  relation 
and  belongs  generally  to  the  mutual-benefit  bailments,  though 


§    397.]  CARRIERS GENERALLY,  393 

there  may  be  gratuitous  carrying  of  goods,  or  such  a  contract  re- 
lation as  will  classify  the  business  with  almost  any  of  the  several 
kinds  of  bailments.  The  goods  to  be  carried  are  generally  put 
into  the  exclusive  custody  and  control  of  the  carrier  by  the  owner, 
or  shipper,  while  being  carried  to  their  destination  and  until  de- 
livered to  the  consignee. 

§  396.  Carriers  are  of  two  kinds. — Carriers  may  be  said  to 
be  of  two  kinds:  (1)  Private  or  special  carriers,  and  (2)  public 
or  common  carriers;  and  these  two  classes  may  be  said  to  be 
again  classified  as  carriers  by  land  and  carriers  by  water.  The 
most  important  di\ision,  however,  is  that  of  private  or  special, 
and  public  or  common  carriers.  This  subdivision  becomes  im- 
portant by  way  of  fixing  the  liability  and  duty  of  the  carrier, 
whether  the  relation  belongs  to  the  exceptional  bailment  to  which 
attaches  the  exceptional  or  extraordinary  liability,  or  to  that 
class  of  carriers  which  are  simply  bailees  of  the  property  or  goods 
carried. 

§  397.  (1)  Private  or  special  carriers. — This  class  of  carriers 
is  just  what  the  name  imports  —  private  or  special  carriers.  A 
private  or  special  carrier  may  be  said  to  be  one  who  agrees  to 
transport  goods,  property  or  persons  by  special  agreement  or 
-contract  from  place  to  place,  either  for  hire  or  gratuitously.  As, 
for  example,  the  owner  of  a  team  and  wagon,  in  the  small  town 
away  from  the  railroad,  contracts  with  the  merchant  of  his  vil- 
lage to  haul  his  goods  upon  a  particular  occasion  from  the  neigh- 
boring railroad  town,  for  which  he  is  to  receive  a  consideration ; 
the  farmer  agrees  to  carry  his  neighbor's  wheat  from  his  barn 
to  the  market  town,  for  which  he  is  to  receive  a  compensation, 
or  gratuitously  renders  the  service;  the  friend  or  neighbor  who 
is  going  upon  a  journey  to  a  neighboring  city,  for  the  accom- 
modation of  his  friend  carries  to  the  creditor  of  his  friend  an 
amount  of  money  which  he  agrees  to  pay  upon  his  indebtedness, 
and  to  return  to  him  a  receipt  therefor,  this  being  done  either 
gratuitously  or  for  a  compensation.  Other  examples  will  occur 
to  the  reader.  It  is  the  performing  of  the  service  of  carrying 
the  goods  or  the  property,  or  even  the  carrying  of  the  person 
upon  the  special  occasion,  and  not  the  carriage  of  goods  or 
property  or  persons  by  one  holding  himself  out  to  the  public 
as  being  engaged  in  that  business  for  hire.  The  distinction  be- 
tween the  private  or  special  carrier  and  the  public  or  common 
•carrier  will  be  more  clearly  observed  hereafter. 


394  CARRIERS.  [§  399. 

This  class  of  carriers  does  not  belong  to  the  exceptional  bail- 
ment class.  They  are  not  bound  to  receive  and  carry  the  goods 
of  all  who  apply  to  them  to  do  that  service,  but  they  may  select 
their  customers,  fix  their  compensation,  and  the  time  the  service 
is  to  be  performed.  They  are  in  this  respect,  as  will  be  no- 
ticed, somewhat  analogous  to  boarding-house  keepers;  they  are 
in  no  sense  public  servants,  but  are  engaged  in  a  private  busi- 
ness. Should  they  desire  to  do  so,  however,  there  is  no  doubt 
but  that  the  private  or  special  carrier  could  by  contract  assume 
and  become  liable  to  perform  the  duties  of  a  common  or  public 
carrier,  and  in  such  case  the  extraordinary  liability  would  attach 
to  him. 

§  398.  Duties  and  liabilities  of  private  and  special  carriers. — 
The  consideration  of  the  question  of  the  duties  and  liabilities  of 
the  special  or  private  carrier  suggests  a  further  classification, 
namely,  (1)  private  or  special  carriers  for  hire  or  reward,  (2) 
private  or  special  carriers  without  hire  —  gratuitous  service. 


§  399.  The  carriage  of  goods,  or  property,  or  passengers  for 
reward. — The  private  or  special  carrier  who  carries  goods,  prop- 
erty or  passengers  for  hire  or  reward  belongs  not  to  the  class 
of  carriers,  as  we  shall  see,  known  as  common  or  public  carriers, 
but  to  that  class  which  has  been  designated  as  bailees  for  hire^ 
and  to  that  class  of  bailments  known  as  mutual-benefit  bail- 
ments. It  perhaps  approximates  to  the  classification  already  dis- 
cussed among  the  locatio  bailments — "work  and  labor  upon  the 
thing."  The  liability,  therefore,  would  be  the  ordinary  liability 
that  applies  where  the  bailment  is  for  the  benefit  of  both  parties ; 
in  other  words,  the  private  or  special  carrier  is  bound  to  exercise 
ordinary  diligence  in  carrying  the  goods  and  delivering  them  to 
the  consignee,  and  is  liable  for  ordinary  negligence.  As  a  private 
carrier  it  has  been  said  he  is  "bound  to  use  ordinary  care  and 
diligence  such  as  a  reasonably  prudent  man  would  exercise  in 
the  conduct  of  his  own  business,  or  in  the  preservation  of  his 
own  property. ' '  ^ 

In  Samms  v.  Stewart  ^  it  is  said :  ' '  The  general  rule  in  refer- 

1  United  States  v.  Power,  6  28  Vt.  268.  In  Lamb  v.  Parkman 
Mont.  271.  (Dist.   Mass.),  1   Spr.  343,  it  was 

2  20  Ohio,  70-73;  Story  on  Bail-  lield  that  under  a  charter-party 
ments,  sec.  399;  White  v.  Bascom,  giving  to  the  hirer  the  whole  ca- 


§    401.]  CARRIERS GENERALLY.  395 

ence  to  a  bailee  for  hire  —  that  he  is  only  answerable  for  the  loss 
of  the  goods  where  he  has  been  wanting  in  ordinary  care  and 
diligence  —  is  in  most  cases  a  reasonable  and  just  one,  and  is 
only  departed  from  in  the  case  of  a  common  carrier  on  account 
of  the  peculiar  relation  that  he  has  assumed  to  the  community. 
Now  we  see  no  reason  why  the  law  applicable  to  a  common  car- 
rier should  be  applied  to  a  farmer  who  makes  a  personal  ap- 
plication to  a  merchant  for  a  load  of  goods,  on  his  return  trip 
from  market.  The  merchant  has  it  in  his  power  to  make  such 
special  bargain  as  he  chooses,  as  to  what  shall  be  the  liability  of 
the  farmer  in  case  the  goods  are  lost.  The  farmer  has  assumed 
no  character  to  the  community  entitling  him  to  peculiar  confi- 
dence, and  the  merchant  is  left,  as  in  ordinary  cases,  to  an  in- 
quiry as  to  his  character  and  qualifications.  Nor  do  we  sup- 
pose it  would  make  any  difference  how  many  applications  of  this 
kind  had  been  made  by  the  party  thus  carrying,  or  to  how  many 
different  persons  they  may  have  been  made  —  they  would  still 
remain  so  many  special  and  individual  transactions. ' '  The  court 
in  that  case  held  that  a  person  occasionally  carrying  goods  or 
property  may  be  responsible  in  case  of  loss  only  as  an  ordinary 
bailee  for  hire,  and  to  excuse  him  from  liability  he  need  only 
show  that  he  has  used  ordinary  care  and  diligence. 

§  400.  Increasing  or  diminishing  liability  by  contract. — The 
private  carrier  may  by  contract  increase  his  liability  even  to  the 
extent  of  that  of  a  common  carrier,  but  the  increasing  of  lia- 
bility for  loss  of  or  injury  to  the  goods  carried  to  the  extent  of 
that  of  an  insurer  of  the  property,  or  that  of  a  common  carrier, 
will  not  make  him  a  common  carrier  or  change  his  relations  to 
the  public.  To  do  this  he  would  take  upon  himself  all  the  duties 
as  to  receiving  goods  and  carrying  the  same  as  well  as  the  extra- 
ordinary liability;  in  fact  he  would  entirely  lose  his  identity  as 
a  private  carrier  and  become  a  common  or  public  carrier.  For 
example,  the  private  carrier  may  by  contract  warrant  the  de- 
livery of  goods  intrusted  to  him  for  carriage,  and  thus  take  upon 
himself  the  extraordinary  liability  rather  than  that  of  a  bailee 
of  whom  is  required  but  ordinary  diligence. 

§  401.  Can  he  diminish  liability. — There  seems  to  be  no 

doubt  that  a  common  carrier  may  also,  by  contract,  diminish  his 

pacity  of  the  ship,  the  owner  hav-  common  carrier,  but  a  bailee  to 
ing  no  right  to  take  goods  for  any  transport  for  hire,  and  as  such  is 
other  person,  the  owner  is  not  a      bound  for  ordinary  care. 


396  CARRIERS.  [§  404. 

liability ;  but  the  rule  applies  to  him  as  to  other  bailees  —  he  can- 
not by  contract  excuse  himself  for  fraud  or  for  gross  negligence. 
The  rule  is  somewhat  different  in  the  ease  of  a  private  carrier, 
and  it  may  be  said  that  where  fraud  or  public  policy  is  not  in- 
volved, the  private  carrier  could  contract  that  he  shall  not  be 
liable  for  any  loss  or  injury;  but  this  can  only  be  in  cases  where 
the  whole  matter  is  free  from  fraud,  or  in  other  words,  it  must 
be  a  good-faith  contract.  For  example,  a  merchant  hires  a 
farmer  to  haul  his  goods  from  the  railroad  to  his  country  store ; 
the  farmer  may  agree  to  haul  them,  but  may  stipulate  that  he 
will  not  be  responsible  for  any  damage  that  may  result  to  them 
from  whatever  cause  the  damage  may  come  —  as  by  the  breaking 
down  of  his  vehicle,  or  for  any  other  reason ;  but  if  his  contract 
should  be  that  he  would  not  be  liable  for  loss  by  theft,  and  he 
himself  should  steal  the  property,  or  if  he  should  have  an  alliance 
with  others  who  did,  in  such  case  he  would  be  held  for  the  value 
of  the  property.  So  the  matter  rests  entirely  upon  the  question 
of  good  faith  and  public  policy. 

§  402.  When  excused  from  liability  if  no  contract. — ^A  pri- 
vate carrier,  being  much  like  a  bailee  of  the  class  Imown  as 
locatio  bailees,  —  bailees  who  undertake  to  do  something  upon 
the  thing  bailed,  —  the  law  seems  to  hold  him  to  the  same  lia- 
bility; they  are  excused  from  liability  where  the  loss  or  injury 
occurs  by  reason  of  the  act  of  God,  the  public  enemy,  or  inevit- 
able accident,  as  by  accidental  fire,  or  for  loss  by  robbery,  or 
burglary,  or  larceny;  but  in  all  these  cases,  as  in  cases  already 
discussed,  the  carrier  must  be  able  to  prove  that  in  the  exercise 
of  ordinary  diligence  the  loss  could  not  have  been  avoided.  He 
must  not  expose  the  property  to  any  of  these  dangers  if  by  or- 
dinary diligence  he  can  avoid  it. 

§  403.  Compensation  and  lien  of  the  private  carrier. — The 
private  carrier  may  regulate  his  compensation  and  charges  by 
contract  for  the  carrying  of  the  goods ;  but  if  he  does  not  do  so, 
and  there  is  no  stipulation  as  to  compensation,  he  is  entitled  to  a 
reasonable  compensation,  to  be  determined  from  all  of  the  facts, 
and  to  be  proven  by  the  testimony  of  competent  witnesses  as  to 
what  such  service  under  just  such  circumstances  would  be  rea- 
sonably worth. 

§  404.  Lien. — It  would  seem  from  the  weight  of  author- 
ity that  the  private  carrier  has  no  right  to  a  common-law  lien 
upon  the  goods  carried  for  his  compensation.     Many  of  the  writ- 


§    404.]  CARRIERS GENERALLY.  397 

ers  upon  this  subject  urge  that  there  is  no  reason  why  he  should 
not  have  such  a  lien,  and  that  reasoning  by  analogy  he  certainly 
should  have  one.  It  is  argued  that  the  same  reasons  exist,  for 
example,  that  obtain  in  the  case  of  the  warehouseman,  and  some 
have  urged  that  the  same  reason  obtains  as  in  the  case  of  a  bailee 
who  benefits  the  property  by  his  service  and  materials.^ 

It  would  seem,  however,  to  be  somewhat  questionable  whether 
the  arguments  made  by  these  authors  are  based  upon  sound  rea- 
soning. The  lien  given  to  the  artisan  who  performs  labor  upon 
the  property  and  adds  material  by  way  of  making  repairs  is 
given  upon  the  theory  that  he  has  bettered  the  property.  The 
innkeeper  and  common  carrier  are  recognized  as  being  entitled 
to  a  lien  because  they  are  in  a  measure  public  servants,  and 
bound  to  perform  services  and  furnish  entertainment  for  all 
who  apply.  And  it  is  upon  this  theory  that  their  lien  is  given. 
No  such  reason  can  be  said  to  exist  in  the  case  of  the  private 
carrier;  his  relation  is  one  created  entirely  by  a  contract  of  his 
own  making  in  each  particular  instance.  He  can  make  the  con- 
tract and  enter  upon  the  service,  or  he  may  refuse,  as  he  pleases ; 
he  may  perform  service  to-day,  or  this  week,  or  next  week,  or 
next  month,  as  he  pleases,  regulating  all  by  the  particular  con- 
tract. He  may  give  credit  for  the  services  he  performs,  or  he 
may  demand  his  payment  in  advance,  as  he  pleases.  If  the 
person  who  employs  him,  in  his  judgment,  is  one  who  is  liable 
not  to  compensate  him,  he  can  provide  for  securing  his  com- 
pensation by  the  contract  which  he  makes  for  the  carriage  of  the 
goods.  But  it  is  urged  that  certainly  the  warehouseman  should 
be  no  more  entitled  to  a  lien  for  compensation  than  the  private 
carrier;  that  he  is  not  bound  to  receive  and  store  and  care  for 
the  goods  of  all  who  may  apply,  and  that  the  storing  of  the 
property  can  hardly  be  said  to  add  benefit  to  it,  as  in  case  of  the 
artisan.  While  this  is  true,  and  while  perhaps  there  can  be  no 
more  reason  why  the  warehouseman  should  have  a  lien  than  that 
the  private  carrier  should  be  secured  by  lien,  yet  it  seems  that 
there  is  quite  a  difference  in  the  relation  between  a  private  car- 
rier and  a  warehouseman ;  certainly  the  warehouseman  is  dealing 

3  1  Hutchinson,  Carriers,  sec.  46;  Commission  say:  "The  compensa- 
Jones  on  Liens,  sec.  276;  Biddle,  tion  of  the  common  carrier  is  as- 
Dean  &  Co.  v.  N.  Y.,  L.  E.  &  W.  R.  sured  to  him  by  a  lien  upon  the 
Co.,  1  Int.  Com.  594-604.  In  this  goods — a  right  which  is  not  en- 
case    the     Interstate     Commerce  joyed  by  a  private  carrier." 


398  CARRIERS.  [§  405. 

more  largely  with  the  public.  Whereas  the  law  may  not  compel 
him  to  receive  the  goods  of  all  who  apply  and  store  them  and 
care  for  them,  he  nevertheless,  as  a  general  rule,  advertises  and 
asks  patronage  from  the  whole  public.  He  builds  immense  ware- 
houses, and  invites  all  who  have  goods  to  store,  or  grain  to  put 
in  the  elevators,  to  bring  it  to  his  warehouse.  He  is  thus  dealing 
with  the  public  —  dealing  with  those  who  apply ;  and  it  seems 
to  have  been  on  this  account  that  his  right  to  a  lien  for  com- 
pensation is  recognized.  It  would  seem  that  there  is  a  difference 
between  such  cases  and  cases  where  one  seeks  out  the  individual 
and  makes  with  him  a  private  contract,  which  may  vary  as  cir- 
cumstances vary,  as  to  price,  as  to  the  manner  of  performing 
the  contract  and  as  to  the  time  when  it  shall  be  performed ;  and  so 
it  would  appear  that  the  same  reason  does  not  exist  in  the  case  of 
the  private  carrier  that  exists  even  in  the  case  of  the  warehouse- 
man for  the  giving  of  security  for  services  by  a  lien  upon  the 
property.* 

II. 

§  405.  Special  or  private  carriers  without  hire — Gratuitous 
service. — Where  the  carrying  of  the  goods  is  gratuitous,  the 
carrier  being  a  bailee  of  the  property  intrusted  to  him,  it  would 
seem  that  the  same  rules  as  to  liability  must  attach  that  obtain 
in  the  case  of  bailments  for  the  sole  benefit  of  the  bailor  —  he 
would  be  held  liable  for  gross  negligence  and  required  to  exer- 
cise only  slight  diligence.  What  is  gross  negligence  or  slight 
diligence  can  only  be  determined  by  the  circumstances  of  each 
particular  case.  No  general  or  fixed  definition,  as  we  have  seen, 
can  be  laid  down;  what  would  be  ordinary  diligence  in  one  case 
might  be  gross  negligence  in  another.  The  examples  of  special 
or  private  carriers  without  hire  are  numerous,  and  no  doubt  the 
mere  suggestion  brings  to  mind  very  many  examples.  A  farmer 
who,  for  the  accommodation  of  his  neighbor,  takes  into  his  wagon, 

*  The  cases   are  few  upon  this  gnage:   "One  who  is  not  a  public 

question.     An  early  case  in  Penn-  or  common  carrier,  but  specially 

sylvania  is  generally  cited,  Fuller  undertakes   to   carry  a  particular 

V.    Bradley,    25    Pa.    St.    120,    121,  load    for    hire    has    no    lien    for 

which   holds   that   a   private   car-  freight    unless    he    specially    re- 

rier  has  no  lien;  the  court  adopt-  serves  it."     Picquet  y.  McKay,  2 

ing  the  charge  of  the  court  below  Blackf.  (Ind.)  465. 
which   was   in   the   following  Ian- 


§    405.]  CARRIERS GENERALLY.  399 

while  going  to  the  market  town,  bags  of  wheat  to  be  left  at  the 
mill  to  be  ground,  or  on  returning,  without  compensation  but  for 
mere  accommodation,  brings  for  the  miller  flour  which  is  to  be 
delivered  to  the  neighboring  farmer;  or  where  the  neighbor  who 
is  traveling  to  some  other  city  carries,  without  recompense,  bonds 
to  be  delivered  to  a  broker  to  be  sold,  or  money  to  be  paid  upon 
his  neighbor's  debts,  or  any  such  like  services  of  carrying  goods 
or  property,  or  money,  or  bonds,  simply  for  accommodation,  —  in 
such  cases  there  is  no  compensation ;  the  sole  benefit  to  be  derived 
is  derived  by  the  bailor — the  one  who  intrusts  the  property  to  the 
gratuitous  carrier.  If  he  receives  compensation,  as  we  have 
seen,  he  must  exercise  ordinary  diligence,  but  if  he  receives  no 
compensation  he  is  not  held  to  so  high  a  degree  as  ordinary  dili- 
gence.^ 

5  Pender  v.  Robins,  6  Jones  L.  watches.      The    court    held    that 

(N.  C.)  207.    The  captain  of  a  ves-  under  such  circumstances  the  cap- 

sel  received  watches  which  he  was  tain  was  liable  only  for  gross  neg- 

to   carry   for   the   owner   and   de-  ligence.    Colyar  v.  Taylor,  1  Cold, 

liver  gratuitously.   He  put  them  in  (Tenn.)    372,   where   it   was   held 

his   chest   in   the  cabin   he   occu-  that  defendant  was  guilty  of  gross 

pied,    and    while    he    was    asleep"  negligence    and    liable.      Fay    v. 

thieves    broke    in    and    stole    the  Steamer  New  World,  1  Cal.  348. 


CHAPTER  II. 


PUBLIC  OR  COMMON  CARRIERS 


406.  Definition. 

407.  First    essential    requisite — 

The   important  and   dis- 
tinguishing essentials. 

408.  Second    essential    requisite 

— Determinate  of  the  re- 
lation. 

409.  The  true  test. 

410.  May  limit  the  employment 

to  certain  kinds  of  prop- 
erty. 

411.  Third  essential  requisite — 

Carriage  must  be  for  hire. 

412.  Carriers  by  water  as  well 

as  by  land. 

413.  Who  are  common  carriers. 

414.  Tugs  and  tow-boats. 


§  415.  Contrary  holdings. 

416.  Ferry-boats. 

417.  Carriers  by  land. 

418.  Hackmen  and  omnibus  men-. 

419.  Truckmen,     cartmen 

and  owners  of  wagons. 

420.  Street-car  companies. 

421.  Express  companies. 

422.  Fast-freight  lines,  dis- 
patch companies,  etc. 

423.  Transfer  companies. 

424.  Railroad  companies. 

425.  Receivers  and  trustees. 

426.  Not  all  railroad  com- 
panies common  carriers. 

427.  Who  are  not  common  car- 

riers. 


§  406.  Definition. — The  definition  generally  conceded  to  be 
correct  and  more  often  adopted  than  any  other  is  that  of  Chief 
Justice  Parker  in  the  case  of  Dwight  v.  Brewster:  ^  ** A  common 
carrier  is  one  who  undertakes  for  hire  or  reward  to  transport 
the  goods  of  such  as  choose  to  employ  him  from  place  to  place. ' ' 
This  definition  is  somewhat  enlarged  by  Judge  Cooley  in  his 
work  on  Torts :  "A  common  carrier  is  one  who  regularly  under- 
takes for  hire,  either  on  land  or  on  water,  to  carry  goods,  or 
goods  and  passengers,  between  different  places  for  such  as  may 
offer."  Another  definition  that  has  received  commendation  is 
one  of  an  eminent  jurist,  as  follows:  "Any  man  undertaking 
for  hire  to  carry  goods  of  all  persons  indifferently. ' '  ^     From 


1 1  Pick.  50 ;  Cooley  on  Torts, 
638.  Judge  Cooley  in  his  note  to 
the  text  cites  Mershon  v.  Hoben- 
sack,  22  N.  J.  373.  "No  person  is 
a  common  carrier  if  not  a  carrier 
for  hire."  Citing  Citizens'  Bank  v. 
Nantucket  Steamboat  Co.,  2  Story, 
16,  and  other  cases. 


2  Gisbourn  v.  Hurst,  1  Salk.  249, 
This  definition  is  said  by  Gibson, 
C.  J.,  in  Gordon  v.  Hutchinson,  1 
Watts  &  Serg.  285,  to  be  the  best 
definition  of  a  common  carrier  in 
its  application  to  the  business  of 
this  country.  Hutchinson  on  Car- 
riers,  sec.   47,   is   as   follows:    "A 


§    407.]  PUBLIC  OR  COMMON  CARRIERS.  401 

the  accepted  definitions  of  a  common  carrier  it  may  be  said  that 
there  are,  among  others,  three  most  essential  requisites: 

1st.  He  must  regularly  undertake  to  carry  goods  for  all  who 
choose  to  employ  him,  or  goods  and  passengers  between  different 
places  for  such  as  may  offer. 

2d.  His  undertaking  and  holding  himself  out  to  the  public 
as  a  carrier  must  be  such  that  in  case  of  his  refusal  to  accept 
and  carry  the  goods  in  the  regular  course  of  his  business  he  would 
be  liable  to  an  action  for  the  damages  that  might  result. 

3d.     The  carriage  of  goods  or  passengers  must  be  for  hire. 

§  407.  (1)  First  essential  requisite — The  important  and  dis- 
tinguishing essentials. — The  most  important  and  distinguishing 
essential  is,  perhaps,  the  first  one  mentioned  in  the  above  sec- 
tion. The  common  carrier  must  regularly  undertake  to  carry 
goods  for  all  who  choose  to  employ  him,  and  to  carry  all  pas- 
sengers who  apply  for  carriage.  It  is  this  that  distinguishes  the 
common  carrier  from  the  private  or  special  carrier.  The  pri- 
vate or  special  carrier  may,  like  the  boarding-house  keeper,  select 
his  customers;  but  the  common  carrier,  like  the  innkeeper,  must 
serve  all  who  apply.  The  common  carrier  is  therefore  called  a 
public  carrier,  and  in  some  respects  may  be  said  to  be  a  public 
servant,  owing  to  the  public  the  performance  of  certain  duties 
and  taking  upon  himself  certain  public  responsibilities.  He  can- 
not, like  the  private  carrier,  choose  his  customers  and  make 
special  contracts  for  carrying  their  goods  or  transporting  them 
as  passengers;  he  must  carry  goods  and  passengers  at  the  regu- 
lar rate,  not  giving  to  one  advantages  over  others.  It  is  the 
holding  out  to  the  public  by  the  carrier  that  he  is  ready  and 
willing  to  carry  the  goods  of  all  who  apply  and  pay  the  price  for 
carrying  that  gives  to  him  the  characteristics  that  distinguish 
him  from  other  carriers  and  fixes  his  relation  as  a  common  car- 
rier.^ 

common  or  public  carrier  is  one  he  refuses  to  carry  such  goods  for 

who  undertakes  as  a  business  for  those  who  are  willing  to  comply 

hire  or  reward  to  carry  from  one  with  his  terms,  becomes  liable  to 

place  to  another  the  goods  of  all  an  action  by  the  aggrieved  party 

persons  who  may  apply  for  such  for  such  refusal."    Carpenter  v.  B. 

carriage,  provided  the  goods  be  of  &  O.  R.   Co.    (Del.   1906),  64  Atl. 

the   kind   which   he   professes    to  252;     Cownie    Glove    Co.    v.    Mer- 

carry,  and  the  persons  so  apply-  chants,'    etc.    Co.,    130   Iowa,    327, 

Ing  will  agree  to  have  them  car-  106  N.  W.  749. 

ried  upon   the  lawful  terms   pre-  3  Bound  to  receive  all  goods  of- 

scribed  by  the  carrier,  and  who,  if  fered,    which    it   is   able    and    ac- 
26 


402  CARRIERS.  [§    409. 

§  408.  Second  essential  requisite — Determinate  of  the  rela- 
tion.— Determinate  of  this  relation,  therefore,  may  be  said  to 
be  the  fact,  not  that  he  is  engaged  in  a  public  employment,  or 
that  he  carries  goods  to  any  fixed  or  particular  place,  but  that, 
so  far  as  his  capacity  for  transporting  goods  or  passengers  will 
permit,  he  holds  himself  out  to  the  public  as  ready  and  willing  to 
carry  the  goods  of  all  persons  who  choose  to  employ  him  and  all 
passengers  who  apply.  The  relation  must  be  so  thoroughly  de- 
fined and  understood  that  in  case  of  a  refusal  to  receive  and 
carry  the  goods,  the  terms  of  carriage  being  complied  with,  an 
action  could  be  sustained  against  him  for  such  refusal.* 

§  409.  The  true  test. — Judge  Simpson,  for  the  supreme  court 
of  South  Carolina,  said:^  "The  true  test  of  the  character  of  a 
party  as  to  the  fact  whether  he  is  a  common  carrier  or  not  is  his 
legal  duty  and  obligation  with  reference  to  transportation.  Is  it 
optional  with  him  whether  he  will  or  will  not  carry  or  must  he 
carry  for  all?  If  it  is  his  legal  duty  to  carry  for  all  alike  who 
comply  with  the  terms  as  to  freight,  etc.,  then  he  is  a  common 
carrier  and  subject  to  all  those  stringent  rules  which  for  wise 
ends  have  long  since  been  adopted  and  uniformly  enforced  both 
in  England  and  in  all  the  states  upon  common  carriers.  If,  on 
the  contrary,  he  may  carry  or  not  as  he  deems  best,  he  is  but  a 
private  individual,  and  is  invested  like  all  other  private  per- 

customed  to  carry,  Southern  Ex.  has  room,  carry  for  hire  the  goods 
Co.  V.  R.  M.  Rose  Co.,  124  Ga.  581,  of  every  person  who  will  bring 
53  S.  E.  185.  Flood  threatening  goods  to  him  to  be  carried.  The 
inundation  of  tracks  held  suffi-  test  is  not  whether  he  is  carry- 
clent  excuse  for  refusing  to  re-  ing  on  a  public  employment,  or 
ceive  goods.  Gray  v.  Wabash,  etc.  whether  he  carries  to  a  fixed 
R.  Co.,  119  Mo.  App.  144,  95  S.  W.  place,  but  whether  he  holds  out, 
983.  If  capacity  not  overtaxed  either  expressly  or  by  a  course  of 
bound  to  furnish  cars  for  ship-  conduct,  that  he  will  carry  for 
ment.  Hoffman,  etc.  Co.  v.  St.  hire,  so  long  as  he  has  room,  the 
Louis,  etc.  R.  Co.,  119  Mo.  App.  goods  of  all  persons  indifferently 
495,  94  S.  W.  597.  who  send  him  goods  to  be  carried. 
4  Southern  Exp.  Co.  v.  Rose  Co.,  If  he  does  this,  his  first  responsi- 
124  Ga.  581,  53  S.  E.  185,  5  L.  R.  bility  naturally  is  that  he  is  bound 
(N.  S.)  619,  and  notes;  Nugent  v.  by  a  promise  implied  by  law  to  re- 
Smith,  L.  R.  1  Com.  P.  Div.  27.  ceive  and  carry  for  a  reasonable 
The  court  say:  "The  real  test  of  price  the  goods  sent  to  him  upon 
whether  a  man  is  a  common  car-  such  an  invitation." 
rier,  whether  by  land  or  water,  s  Piedmont  Mfg.  Co.  v.  Colum- 
therefore  really  is  whether  he  has  bia  River  Co.,  19  S.  C.  353. 
held  out  that  he  will,  so  long  as  he 


§    410.]  PUBLIC  OR  COMMON  CARRIERS.  403 

sons  with  the  right  to  make  his  own  contracts,  and  when  made  to 
stand  upon  them.  While  the  law  has  imposed  duties  and  heavy 
responsibilities  upon  common  carriers  which  they  cannot  avoid, 
limit  or  shake  off,  yet  it  has  never  attempted  to  hamper  and  sur- 
round those  who  are  not  common  carriers  with  the  stringent  rules 
applicable  to  carriers,  or  to  prevent  them  from  exercising  their 
own  judgment  as  to  the  responsibilities  which  they  are  willing 
to  assume  in  a  special  case." 

§  410.  May  limit  the  employment  to  certain  kinds  of  prop- 
erty.— While  from  the  generally  accepted  definition  of  a  com- 
mon carrier  it  might  seem  that  the  carrier  will  not  be  permitted 
to  limit  his  employment  as  to  the  kind  of  property  he  will  carry, 
yet  there  can  be  no  doubt  that  he  may  do  so.  As,  for  example, 
the  carrier  of  freight  and  passengers  cannot  be  compelled  to 
carry  small  packages  or  bundles,  or  money,  or  such  kind  of 
goods  as  belong  especially  to  the  express  company's  business.  Or 
the  carrier  who  is  engaged  in  running  a  ferry-boat  for  the  car- 
riage of  passengers  could  not  be  compelled  to  carry  freight,  or 
be  held  liable  for  the  carriage  of  parcels  which  were  delivered 
to  the  captain  of  the  boat  to  be  carried  to  some  consignee.  He 
has  limited  his  employment  to  the  carriage  of  passengers  upon 
his  ferry-boat,  and  he  cannot  be  compelled  to  carry  property 
which  is  not  in  the  line  of  his  employment.  Judge  Story  says: 
''To  bring  a  person  within  the  description  of  a  common  carrier 
he  must  exercise  it  as  a  public  employment;  he  must  undertake 
to  carry  goods  for  persons  generally,  and  he  must  hold  himself 
out  as  ready  to  engage  in  the  transportation  of  goods  for  hire 
as  a  business,  not  as  a  casual  occupation  pro  hoc  vice."  ^     In 


6  story  on  Bailments,  sec.  495;  his  own  boat  and  one  furnished  by- 
Gordon  V.  Hutchinson,  1  W.  &  S.  the  plaintiff  with  lumber,  and  un- 
(Pa.)  285;  Mershon  v.  Hovensack,  dertook  to  carry  it  by  river  to 
22  N.  J.  Law,  377;  Verner  v.  Swit-  market.  The  boat  struck  an  ob- 
zer,  32  Pa.  St.  208.  In  Moss  v.  struction,  was  sunk,  and  a  part  of 
Battis,  4  Heisk.  (Tenn.)  661,  the  the  lumber  was  lost.  He  was  held 
defendant  was  a  farmer,  and,  after  to  be  a  common  carrier.  This  has 
his  crops  were  harvested,  he  ran  been  held  in  other  Tennessee 
a  boat  for  himself  or  any  one  else  cases.  Johnston  v.  Friar,  4  Yerg. 
who  would  employ  him.  He  built  48;  Gordon  v.  Buchanan,  5  Yerg. 
a  flat  boat  to  transport  to  market  71;  Turney  v.  Wilson,  7  Yerg.  340. 
a  cargo  of  his  own  staves,  but  The  ruling  seems  to  be  rather  ex- 
at  the  request  of  the  plaintiff  he  ceptional.  See  Hutchinson  on  Car- 
abandoned  his  intention  and  loaded  riers,  sec.  52. 


404  CARRIERS.  [§    410. 

Citizens  Bank  v.  Steamboat  Co., "  Judge  Story  very  clearly  states 
the  doctrine :  "A  steamboat  may  be  employed,  although  I  pre- 
sume it  is  rarely  the  case,  solely  in  the  transportation  of  pas- 
sengers, and  then  the  liability  is  incurred  only  to  the  extent  of 
the  common  rights,  duties  and  obligations  of  carrier  vessels  of 
passengers  by  sea,  and  carrier  vehicles  of  passengers  on  land ;  or 
they  may  be  employed  solely  in  the  transportation  of  goods  and 
merchandise,  and  then,  like  other  carriers  of  the  like  character 
at  sea  and  on  land,  they  are  bound  to  the  common  duties,  obliga- 
tions and  liabilities  of  common  carriers ;  or  the  employment  may 
be  limited  to  the  mere  carriage  of  particular  kinds  of  property 
and  goods ;  and  when  this  is  so,  and  the  fact  is  known  and  avowed, 
the  owners  wiU  not  be  liable  as  common  carriers  for  any  other 
goods  or  property  intrusted  to  their  agents  without  their  con- 
sent. The  transportation  of  passengers  or  of  merchandise,  or  of 
both,  does  not  necessarily  imply  that  the  owners  hold  themselves 
out  as  common  carriers  of  money  or  bank  bills.  It  has  never 
been  imagined,  I  presume,  that  the  owners  of  a  ferry-boat,  whose 
ordinary  employment  is  merely  to  carry  passengers  and  their 
luggage,  would  be  liable  for  the  loss  of  money  intrusted  for  car- 
riage to  the  boatman  or  other  servants  of  the  owners,  where  the 
latter  had  no  knowledge  thereof  and  received  no  compensation 
therefor.  In  like  manner  the  owTiers  of  stage-coaches,  whose  or- 
dinary employment  is  limited  to  the  transportation  of  passengers 
and  their  luggage,  would  not  be  liable  for  parcels  of  goods  or 
merchandise  intrusted  to  the  boatman  employed  by  them  to  be 
carried  from  one  place  to  another  on  their  route  where  the  own- 
ers received  no  compensation  therefor,  and  did  not  hold  them- 

7  Citizens'    Bank    v.    Nantucket  to  carry  property  of  all  who  apply. 

Steamboat  Co.,  2  Story  (U.  S.),  17;  In  Gordon  v.  Hutchinson,  1  W.  & 

Redfield's    Law   of   Railway    Car-  S.   (Pa.)  285,  the  court  decidedly 

riers    (2d    ed.),    1.      The    test    as  holds  that  it  is  not  necessary  that 

claimed  by   some  of  the  authors  transportation  should  be  his  prin- 

seems  to  be,  is  the  business  habit-  cipal  business;   that  even  if  it  is 

ual,  not  merely  casual?     Fish  v.  merely  an  occasional  business  it 

Chapman,  2  Ga.  349,  46  Am.  Dec.  would    be    enough,    provided,    of 

393;   Samms  v.  Stewart,  20  Ohio,  course,   he   holds   himself   out   as 

69.      There    are    cases,    however,  ready  and  desirous  of  carrying  the 

that  hold  that  the  business  need  property   of  all   who   may   apply, 

not  be  continual,  but  that  the  test  Mores    v.    Norris,    4    N.    H.    306; 

is    more   confined   to   his   holding  Haynie    v.    Baylor,    18    Tex.    498; 

himself  out  as  ready  and  willing  Farley  v.  Lavery,  54  S.  W.  840. 


§    411.]  PUBLIC  OR  COMMON  CARRIERS.  405 

selves  out  as  common  carriers  of  such  parcels.  A  fortiori  they 
would  not  be  liable  for  the  carriage  of  parcels  of  money  or  bank 
bills,  under  the  like  circumstances.  So,  if  money  should  be  in- 
trusted to  a  common  wagoner  not  authorized  to  receive  it  by  the 
ordinary  business  of  his  employers  and  owners,  at  their  risk,  I 
apprehend  that  they  would  not  be  liable  for  the  loss  thereof  as 
common  carriers,  any  more  than  they  would  be  for  an  injury 
done  by  his  negligence  to  a  passenger  whom  he  had  casually 
taken  up  on  the  road.  In  all  these  cases  the  nature  and  extent 
of  the  employment  or  business  which  is  authorized  by  the  own- 
ers on  their  own  account  and  at  their  own  risk,  and  which  either 
expressly  or  impliedly  they  hold  themselves  out  as  undertaking, 
furnishes  the  true  limits  of  their  rights,  obligations,  duties  and 
liabilities.  The  question,  therefore,  in  all  cases  of  this  sort  is, 
what  are  the  true  nature  and  extent  of  the  employment  and  busi- 
ness in  which  the  owners  hold  themselves  out  to  the  public  as 
engaged?  They  may  undertake  to  be  common  carriers  of  pas- 
sengers, and  of  goods  and  merchandise,  and  of  money;  or  they 
may  limit  their  employment  and  business  to  the  carriage  of  any 
one  or  more  of  these  particular  matters." 

§  411.  (3)  Third  essential  requisite — Carriage  must  be  for 
hire. — If  the  carrier  is  to  receive  no  compensation,  and  the  serv- 
ice is  gratuitous,  we  have  seen  that  the  carrier  must  of  necessity 
be  a  private  or  special  carrier,  for  in  such  case  he  is  but  a  gratui- 
tous bailee.^  To  be  a  common  carrier  the  service  must  be  for 
some  reward,  no  matter  how  small  the  compensation,  or  whether 
it  be  direct  or  indirect;  if  there  is  any  benefit  whatever  derived 
from  it  to  the  carrier,  it  is  enough  to  make  him  a  common  car- 
rier. Even  a  promise  of  benefit  or  payment  has  been  held  to  be 
sufficient.  In  Pierce  v.  Railroad  Co.,^  the  action  was  to  recover 
the  value  of  eight  bundles  of  bags  which  had  been  in  use  for 
two  seasons  in  transporting  grain  by  way  of  the  river  and  de- 
fendants' railway.  The  defendants  sought  to  avoid  liability  as  a 
common  carrier  by  showing  a  uniform  and  long  established  cus- 

8  In  Citizens'  Bank  v.  Nantucket  titled  to  receive  any  recompense 

Steamboat  Co.,  2  Story  (U.  S.),  .35,  for  his  services.    The  known  defi- 

Judge  Story,  in  the  opinion,  says:  nition  of  a  common  carrier  in  all 

"I  take  it  to  be  exceedingly  clear  our   books   fully   establishes    this 

that  no  person  is  a  common  car-  result."     Louisville,  etc.  R.  Co.  v. 

rier  in  the  sense  of  the  law  who  Gerson,    102    Ala.    409;    Kemp    v. 

is  not  a  carrier  for  hire, — that  is.  Coughtry,  11  Johns.  107. 

who  does  not  receive  or  is  not  en-  a  23  Wis.  387. 


406  ,  CARRIERS.  [§   412. 

torn  of  the  river  and  railway  that  the  bags  used  in  the  trans- 
portation of  grain  were  carried  free  of  charge  when  empty,  and 
claiming,  because  of  this,  that  it  could  be  held  liable  only  in  case 
of  gross  negligence.  The  court  say:  "It  makes  no  difference 
that  the  custom  is  described  as  being  to  carry  the  bags  free.  In 
determining  whether  they  are  really  carried  free  or  not,  the  whole 
transaction  between  the  parties  must  be  considered,  and  when 
this  is  done  it  is  found  that  all  that  is  meant  by  saying  that  the 
empty  bags  are  carried  free  is,  that  the  customer  pays  no  other 
consideration  for  it  than  the  freight  derived  from  the  business 
they  give  the  company.  But  this,  as  already  seen,  is  sufficient 
to  prevent  the  transportation  of  the  bags  from  being  gratui- 
tous. "^° 

§  412.  Carriers  by  water  as  well  as  by  land. — Carriers  by 
water,  including  carriers  upon  the  high  seas,  where  they  carry 
goods  for  hire  and  hold  themselves  out  as  ready  and  willing  to 
serve  all  who  come,  are  held  to  be  common  carriers  and  subject 
to  the  liabilities  that  attach  to  common  carriers.  In  Liverpool 
Steamboat  Co.  v.  Phoenix  Co.,^^  Mr.  Justice  Gray,  in  rendering 
the  opinion  of  the  court,  says:  "By  the  settled  law,  in  the  ab- 
sence of  some  valid  agreement  to  the  contrary,  the  owner  of  a 

10  Smith  V.  Railroad  Co.,  24  N.  also  a  clause  in  the  contract  that 
Y.  222;  Steamboat  New  World  v.  "the  persons  riding  free  to  take 
King,  16  How.  (U.  S.)  469.  In  this  charge  of  the  stock  do  so  at  their 
case  it  was  held  that  under  a  gen-  own  risk  of  personal  injury  from 
eral  custom  of  steamboats  to  carry  whatever  cause."  The  court  held. 
Steamboat  men  free,  a  steamboat  however,  that  it  could  not  be  con- 
man  riding  on  a  free  ticket  was  sidered  a  free  carrying  of  the  pas- 
not  to  be  regarded  as  a  gratuitous  sengers  who  had  charge  of  the 
passenger;  but  that  the  consider-  stock,  and  for  any  injury  to  them 
ation  was  to  be  found  in  those  ad-  the  company  must  be  held  as  com- 
vantages  which  induced  the  estab-  mon  carriers. 

lishment  of  the  custom.  In  Bis-  n  129  U.  S.  397,  437;  Story  on 
sell  V.  New  York  Cent.  R.  Co.,  25  Bailments,  sec.  501;  The  Niagara, 
N.  Y.  442,  the  carrier  was  em-  21  How.  7,  23;  The  Lady  Pike,  21 
ployed  to  transport  certain  live  Wall.  1,  14;  Portfield  v.  Hum- 
stock,  and  stipulated  to  carry  phreys,  8  Humph.  (Tenn.)  497; 
members  of  the  firm,  the  plaintiff  The  Schooner  Emma  Johnston,  1 
or  such  other  persons  as  the  firm  Sprague  (U.  S.),  527;  The  Pro- 
should  employ  to  take  charge  of  peller  Commerce,  1  Black  (U.  S.), 
the  stock  during  the  transit,  de-  582;  The  Schooner  Reeside,  2 
fendants  claiming  that  the  car-  Sumn.  (U.  S.)  567;  Parker  v.  Flag, 
riage  of  passengers  was  without  26  Me.  181. 
compensation;      and     there     was 


§    413.]  PUBLIC  OR  COMMON  CARRIERS.  407 

general  ship  carrying  goods  for  hire,  whether  employed  in  in- 
ternal, in  coasting,  or  in  foreign  commerce,  is  a  common  carrier 
with  the  liability  of  an  insurer  against  all  losses  except  only 
such  two  irresistible  causes  as  the  act  of  God  and  public  ene- 
mies. ' '  It  has  been  said,  however,  that  ' '  if  the  owner  of  a  ship 
employs  it  on  his  own  account  generally,  or  if  he  lets  the  tonnage 
with  a  small  exception  to  a  single  person,  and  then,  for  the  ac- 
commodation of  a  particular  individual,  he  takes  goods  on  board 
for  freight  (not  receiving  them  for  persons  in  general),  he  will 
not  be  deemed  a  common  carrier  but  a  mere  private  carrier,  for 
he  does  not  under  such  circumstances  hold  himself  out  as  en- 
gaged in  a  public  business  or  employment."  ^^  This  would  seem 
at  first  blush  not  to  be  in  harmony  with  the  class  of  cases  already 
quoted,  where  it  is  held  that  it  is  not  necessary,  in  order  to  be 
held  a  common  carrier,  that  the  person  should  be  habitually  and 
continually  engaged  in  the  business  of  carrying  goods  for  hire 
for  all  who  may  apply,  but  that  if  he  carries  goods  at  particular 
times  or  seasons  for  hire,  holding  himself  out  as  ready  and  will- 
ing to  carry  for  all,  he  would  be  a  common  carrier.  It  will  be 
noticed,  however,  that  these  holdings  do  not  include  cases  where 
goods  are  carried  for  a  private  person,  or  for  the  accommoda- 
tion of  a  "particular  individual,"  and  that  therefore  the  hold- 
ing is  in  harmony  with  the  cases  cited. 

§  413.  Who  are  common  carriers. — Having  thus  defined  com- 
mon carriers  and  discussed  the  essentials,  and  determined  that 
carriers  by  water  will,  if  carrying  under  the  same  circumstances, 
be  common  carriers  the  same  as  carriers  by  land,  we  can  make 
the  application  of  the  principles  noticed  to  carriers  generally, 
and  determine  who  are  common  or  public  carriers.  To  name 
them  all,  however,  would  be  somewhat  difficult,  for  it  must  be 
seen  that  they  embrace  a  very  large  class.  For  example,  carriers 
by  water  have  been  held  to  comprise  owners  of  general  ships, 
masters  of  steamers,  steam  vessels  engaged  in  coasting  trade,  in- 
land trade,  canal  companies,  owners  of  flat  boats  holding  them- 
selves out  as  ready  and  willing  to  receive  freight  from  the  public 
generally;  in  fact,  the  owners  of  almost  any  craft,  whether  ply- 
ing upon  the  lakes,  upon  the  high  seas  in  the  coasting  trade,  or 
in  our  navigable  rivers,  are  common  carriers  if  engaged  in  the 
carriage  of  goods  for  hire  and  holding  themselves  out  to  the 

12  Story  on  Bailments,  sec.  501;  Nugent  v.  Smith,  1  C.  P.  Div.  28. 


408  CARRIERS.  [§    414. 

public  generally  as  ready  and  willing  to  carry  freight  or  property 
or  passengers  for  all  who  apply. 

§  414.  Tugs  and  tow-boats.— -In  the  case  of  The  J.  P.  Donald- 
son ^^  the  question  discussed  by  the  court,  among  other  things, 
waa  whether  a  tug-boat  engaged  in  towing  a  barge  was  a  common 
carrier  and  subject  to  the  extraordinary  liability  that  attaches 
to  such  carriers.  This  question  has  been  several  times  before 
the  courts,  the  contention  being  that  the  tug-boat  companies  hold 
themselves  out  as  ready  and  willing  to  take  any  and  all  vessels 
or  transports  loaded  with  freight,  or  otherwise,  in  tow  for  hire, 
and  conduct  them  to  whatever  place  is  desired  within  the  limits 
of  their  ability,  and  that  while  so  having  the  vessel  or  transport 
in  tow  it  is  entirely  within  their  control  and  custody.  The 
weight  of  authority  seems,  however,  not  to  sustain  the  contention, 
holding  that  while  the  towing-boat  or  tug  may  have  control  of 
the  vessel  or  transport  to  the  extent  of  directing  her  course  and 
controlling  her  progress,  the  company  or  owners  of  the  tug  have 
no  control  over  the  cargo ;  that  it  is  in  the  immediate  control  and 
custody  of  those  in  control  of  the  transport  upon  which  it  is  be- 
ing carried;  and  in  case  of  accident  they  would  be  expected  to 
take  care  of  the  property  and  protect  it  to  the  utmost  extent  of 
their  ability. 

Mr.  Justice  Gray,  in  delivering  the  opinion  of  the  court  in 
The  J.  P.  Donaldson,  said:  "While  the  tug  is  performing  her 
contract  of  towing  the  barges,  they  may  indeed  be  regarded  as 
part  of  herself  in  the  sense  that  her  master  is  bound  to  use  due 
care  to  provide  for  their  safety  as  well  as  her  own,  and  avoid 
collision  either  of  them  or  of  herself  with  other  vessels.^*  But 
the  barges  in  tow  are  by  no  means  put  under  the  control  of  the 
master  of  the  tug  to  the  same  extent  as  the  tug  herself,  and  the 
cargo,  if  any,  on  board  of  her.  A  general  ship  carrying  goods 
for  hire,  whether  employed  in  internal,  in  coasting  or  in  foreign 
commerce,  is  a  common  carrier,  and  the  ship  and  her  owners,  in 
the  absence  of  a  valid  agreement  to  the  contrary,  are  liable  to  the 
owners  of  the  goods  carried  as  insurers  against  all  losses,  except- 
ing only  such  irresistible  causes  as  the  act  of  God  and  public 
enemies.^^     But  a  tug  and  her  o^niers  are  subject  to  no  such  lia- 

13  167  U.  S.  602.  ifi  Liverpool    Steamboat    Co.    v. 

1*  The    Syracuse,    9    Wall.    672,  Phoenix  Ins.  Co.,  129  U.  S.  397,  437, 

675,   676;    The   Civilta,   103   U.   S.  380. 
699,  701. 


§    415.]  PUBLIC  OB  COMMON  CARRIERS.  409 

bility  to  the  owners  of  the  vessels  towed  or  of  the  cargoes  on 
board  of  them.  The  owners  of  those  vessels  or  cargoes  cannot 
maintain  any  action  for  the  loss  of  either  against  the  tug  or  her 
owners,  without  proving  negligence  on  her  part.  As  was  said  by 
Mr.  Justice  Strong,  and  repeated  by  the  present  Chief  Justice :  ^^ 
'An  engagement  to  tow  does  not  impose  either  an  obligation  to 
insure,  or  the  liability  of  common  carriers.  The  burden  is  al- 
ways upon  him  who  alleges  the  breach  of  such  a  contract  to  show 
either  that  there  has  been  no  attempt  at  performance,  or  that 
there  has  been  negligence  or  unskillfulness  to  his  injury  in  the 
performance.  Unlike  the  case  of  common  carriers,  damage  sus- 
tained by  the  tow  does  not  ordinarily  raise  a  presumption  that 
the  tug  has  been  in  fault.  The  contract  requires  no  more  than 
that  he  who  undertakes  to  tow  shall  carry  out  his  undertaking 
with  that  degree  of  caution  and  skill  which  prudent  navigators 
usually  employ  in  similar  services.'  " 

The  authorities,  however,  are  not  entirely  harmonious  upon 
this  subject,  and  there  are  jurisdictions  where  it  is  maintained 
that  tugs  are  common  carriers,  and  that  the  vessel  they  are  tow- 
ing is  being  conveyed  by  them  as  a  common  carrier,  and  that 
they  are  subjected  to  the  same  extraordinary  liability.^'^ 

§  415.  Contrary  holding^. — The  cases  cited  are  such,  for  ex- 
ample, as  where  the  tug  continually  and  habitually  as  a  business 
plies  between  certain  points,  holding  out  to  the  public  that  they 
will  take  in  charge  vessels  or  barges  or  crafts,  and  tow  them  to 
certain  points.  In  some  cases  where  the  vessel  being  towed 
would  be  unable  to  make  her  way  except  when  assisted  by  the 
tow-boat,  it  is  claimed  that  in  such  case  the  tow-boat  company 

16  The  Webb,  14  Wall.  406,  414;  she  did  not  occupy  the  position  of 

The  Burlington,  137  U.  S.  386,  391;  a  common  carrier,  not  having  that 

The  L.  P.  Dayton,  120  U.  S.  337,  exclusive  control  which  that  rela- 

351.      In    Transportation    Line    v.  tion  would  imply.    It  did  not  have 

Hope,  95  U.  S.  297,  in  which  the  to  pay  the  master  and  the  men  in 

owner  of  a  large  barge  maintained  charge,   nor   did   it   exercise   that 

an  action  against  the  owner  of  a  internal  control  of  her  cargo,  its 

tug  for  negligence  of  the  master  storage,    its    protection    and    the 

of  the  tug  by  which  the  barge  was  like  which  belonged  to  a  bailee, 
totally    lost,    it   was   held   by   the  i^  Sproul  v,  Hemingway,  14  Pick, 

supreme     court     of     the     United  1,    25    Am.    Dec.    350;    White    v. 

States  that  while  the  tug  had  the  Steam  Tug  Mary  Ann,  6  Cal.  462, 

control  of  the  barge,  so  far  as  it  65    Am.    Dec.    523;     Ashmoore    v. 

was  necessary  to  enable  it  to  ful-  Pennsylvania  Steam-towing  Co.,  28 

fill  its  contract  to  tow  the  barge  N.  J.  L.  180. 


410 


CARRIERS 


[§  416. 


or  owner  is  in  entire  control  of  the  vessel  towed,  and  that  it 
should  be  as  liable  for  the  cargo  of  the  vessel  as  though  the  ves- 
sel, cargo  and  all  were  loaded  upon  her  decks.^' 

§  416.  Ferry-boats. — Ferrj^men  are  held  to  be  common  car- 
riers, and  it  may  be  said  that  the  authorities  generally  concede 
that  this  relation  exists  and  applies  to  ferrymen  and  ferry  com- 
panies. To  this  rule,  however,  it  must  be  conceded  that  there 
are  limitations,  but  which  would  apply,  perhaps,  only  where  the 
owner  of  the  ferry-boat  has  not  the  full  custody  and  control  of 
the  property  on  board.  As,  for  example,  where  a  passenger 
takes  on  board  hand  baggage,  or  parcels  which  he  keeps  in  his 
possession  and  under  his  control,  in  such  case  it  cannot  be  said 
that  any  of  the  reasons  of  public  policy  upon  which  the  extreme 
liability  of  common  carriers  is  based  apply.^' 


18  Bussey  v.  Miss.  Valley  Transp. 
Co.,  24  La.  Ann.  165,  in  which 
Judge  Howell  held  that  the  con- 
flict of  authorities  except  in 
Brown  v.  Clegg,  63  Pa.  St.  51,  is 
more  imaginary  than  real,  saying: 
"There  are  two  very  different 
ways  in  which  a  steam  tow  boat 
may  be  employed,  and  it  is  likely 
that  Mr.  Story  (Story  on  Bailm., 
sec.  496)  was  contemplating  one 
method  and  Mr.  Kent  (2  Kent's 
Com.  599)  the  other.  In  the  first 
place  it  may  be  employed  as  a 
mere  means  of  locomotion  under 
the  entire  control  of  the  towed 
vessel,  or  the  owner  of  the  towed 
vessel  and  goods  therein  may  re- 
main in  possession  and  control  of 
the  property  thus  transported  to 
the  exclusion  of  the  bailee,  or  the 
towing  may  be  casual  merely,  and 
not  as  a  regular  business  between 
fixed  termini.  .  .  .  And  it  might 
well  be  said  that  under  such  cir- 
cumstances the  tow-boat  or  tug  is 
not  a  common  carrier.  But  a  sec- 
ond and  quite  different  method  of 
employing  a  tow-boat  is  where  it 
plies  regularly  between  fixed  ter- 
mini, towing  for  hire  and  for  all 


persons  barges  laden  with  goods, 
and  taking  into  her  full  pos- 
session and  control,  and  out  of 
the  control  of  the  bailor,  the  prop- 
erty thus  transported.  .  .  .  Tt 
seems  (meaning  the  last  above 
condition)  to  satisfy  every  re- 
quirement in  the  definition  of  a 
common  carrier.  .  .  .  We  must 
think  that  in  all  reason  the  lia- 
bility of  the  defendants  under 
such  circumstances  should  be  pre- 
cisely the  same  as  if  the  barge, 
being  much  smaller,  had  been  car- 
ried, cargo  and  all,  on  the  decks 
of  their  tug." 

19  Wyckoff  V.  Queens  County 
Ferry  Co.,  52  N.  Y.  32-34.  "While 
ferrymen,  by  reason  of  the  nature 
of  the  franchise  they  exercise,  and 
the  character  of  the  services  they 
render  to  the  public,  are  held  to 
extreme  diligence  and  care,  and  to 
a  stringent  liability  for  any  neg- 
lect or  omission  of  duty,  they  do 
not  assume  all  the  responsibility 
of  common  carriers.  Property  car- 
ried upon  a  ferry-boat  in  the  cus- 
tody and  control  of  the  owner,  a 
passenger,  is  not  at  the  sole  risk 
either    of    the    ferryman    or    the 


§    419.]  PUBLIC  OR  COMMON  CARRIERS.  411 

§  417.  Carriers  by  land. — So  numerous  are  the  common 

carriers  by  land  that  it  would  hardly  be  possible  for  us  to  men- 
tion them  all,  nor  would  it  be  profitable,  as  we  can  determine 
who  are  common  carriers  by  an  application  of  the  rules  already 
discussed  and  to  be  discussed  in  this  chapter.  It  may,  however, 
be  profitable  to  mention  a  few  and  to  discuss  the  law  applicable 
to  their  case. 

§  418.  Hackmen  and  omnibus  men. — Persons  who  are  em- 
ployed for  hire  in  carrying  passengers  and  baggage,  and  solicit- 
ing general  patronage  from  the  public  in  that  particular  line, 
are  common  carriers.  In  Parmelee  v.  McNulty  ^°  the  court  say : 
"The  court  was  authorized  to  take  notice  that  the  owner  of  an 
omnibus  line  is  a  common  carrier  just  as  much  as  the  owner  of  a 
railroad  or  a  line  of  steamboats.  The  court  will  take  notice  of 
the  general  meaning  of  words,  and  we  know  that  an  omnibus 
line  means  a  line  of  coaches  for  the  carriage  of  passengers  and 
their  baggage ; "  ^^  and  in  the  absence  of  an  express  contract,  a 
carrier  of  passengers  by  hackney  coach  was  held  liable  for  in- 
juries resulting  from  his  negligence  to  a  gratuitous  passenger.^- 

§  419.  Truckmen,  cartmen,  and  owners  of  wagons. — 

In  every  city  and  town,  and  generally  about  every  railway  sta- 
tion, are  found  those  who  are  engaged  in  carting  freight  carry- 
ing express,  boxes,  trunks,  packages,  and  whatever  they  can  ob- 
tain within  their  line  to  carry  for  hire.     They  are  engaged  in  a 

owner.     Both  have  duties  to  per-  owner;  but  he  does  undertake  for 

form  in  respect  to  it.     If  lost  or  their  safety  as  against  the  defects 

damaged  by  the  act  or  neglect  of  and  insufficiencies  of  his  boat,  and 

the  ferryman,  he  must  respond  to  other  appliances  for  the  perform- 

the    owner.      The    ordinary    rules  ance  of  the  services,  and  for  the 

governing    in    actions    for    negli-  neglect  or  want  of   skill   of  him- 

gence  apply,  and  a  plaintiff  can-  self  and  his  servants."     White  v. 

not  recover  if  he  is  guilty  of  neg-  Winnisimet  Co.,  7  Cush.  155;  Will- 

ligence   on  his   part,   contributing  oughby   v.    Horridge,    12    Com.    B. 

to    the    loss.      The    liability   of    a  742;  Walker  v.  Jackson,  10  M.  & 

common  carrier,  in  all  its  extent,  W.  161. 

only   attaches   when   there   is   an  2019  m.  556;  Bonce  v.  Dubuque, 

actual    bailment,    and    the    party  etc.  R.  Co.,  53  Iowa,  278,  36  Am. 

sought  to  be  charged  has  the  ex-  Rep.  221. 

elusive    custody    and    control    of  21  Hutch,  on  Car.,  sees.  59,  60; 

property  for  carriage.   A  ferryman  Parmelee  v.  Lowitz,  74  111.  116. 

does  not  undertake  absolutely  for  22  Lemon    v.    Chanslor,    68    Mo., 

the  safety  of  goods  carried  with  340,  30  Am.  Rep.  799. 
and    under    the    control    of    the 


412  CARRIERS.  [§    420. 

public  employment ;  they  are  public  carriers.  To  such  the  owners 
of  property  intrust  their  goods ;  placing  them  in  their  entire  cus- 
tody and  control  to  be  carried  to  the  desired  destination.  Such 
persons  carrying  for  hire,  and  holding  themselves  out  to  the 
public  as  ready  to  engage  in  the  carrying  trade  within  the  course 
of  their  particular  employment,  are  common  carriers,  and  as 
such  are  subject  to  the  duties  and  liabilities  of  common  carriers. 
A  rather  extreme  case  is  given  us  by  the  supreme  court  of  Illi- 
nois, but  which  is  undoubtedly  sound  in  principle.  In  a  case 
involving  this  question  the  court  held:  "Where  a  person,  whose 
principal  pursuit  is  farming,  solicits  goods  to  be  carried  to  the 
market  town  in  his  wagon  on  certain  occasions,  he  makes  himself 
a  common  carrier  for  those  who  employ  him. ' '  ^^  During  the 
time  he  is  engaged  in  the  public  employment  he  solicits  all  who 
have  such  property  or  articles  to  be  carried  to  intrust  them  to 
him,  and  pay  him  for  transporting  them. 

§  420,  Street-car  companies. — Street-car  companies  are 

without  question  common  carriers  of  passengers.  There  seems 
to  be  no  dissent  to  this  question.  In  this  vocation,  however, 
they  are  not  liable  as  insurers  of  their  passengers'  safety,  but,  as 
we  shall  see,  are  liable  only  for  negligence  in  case  of  injury. 
They  are  also  common  carriers,  and  subject  to  liability  as  such 
when  they  engage  in  carrying  goods  for  hire  or  baggage  for  their 
passengers,  as  other  common  carriers.  In  later  years  these  com- 
panies, having  pushed  their  lines  out  into  the  country  surround- 
ing their  home  cities,  in  the  way  of  suburban  lines,  have  become 
an  important  factor  in  the  carrying  trade.  We  find  them  carry- 
ing not  only  passengers  but  also  baggage  and  freight,  and  they 
must  unquestionably  be  classed  with  railroad  companies  as  be- 
ing engaged  in  the  same  business  and  subject  to  the  same  lia- 
bilities. ^* 

23  Jackson  Agr.  Iron  Works  v.  name,  111  Ind,  587.  "A  street  rail- 
Hurlburt,  158  N.  Y.  34-37,  held:  way  company  is  a  common  carrier 
"Hackmen,  wagoners  and  porters  of  passengers  with  duties  and  re- 
who  undertake  to  carry  goods  for  sponsibilities  analogous  to  those  of 
hire  as  a  common  employment  in  a  railroad  company,  and  is  re- 
a  city,  or  from  one  town  to  an-  quired  to  exercise  the  highest  de- 
other,  are  common  carriers.  It  is  gree  of  care  and  skill  in  the 
not  necessary  that  the  exclusive  transportation  of  passengers  by 
business  of  the  parties  shall  be  providing  suitable  tracks,  rolling 
carrying."  stock,    etc.,    keeping    pace    with 

24  Citizens'  Street  Ry.  Co.  v.  TwI-  science,  art  and  modern  improve- 


§    421.]  PUBLIC  OR  COMMON  CARRIERS.  413 

§  421.  Express  companies. — There  lias  been  a  great  deal  of 
contention  upon  the  part  of  the  express  companies  in  the  courts 
as  to  whether  they  are  common  carriers  or  simply  forwarders, 
because  of  the  manner  of  carrying  on  their  business,  depending 
as  they  do  for  carriage  of  the  goods  intrusted  to  them  upon  other 
companies,  the  express  companies,  as  a  rule,  having  no  vehicles 
of  their  own,  except,  perhaps,  their  trucks  or  wagons  supplied  to 
the  different  offices  for  the  delivering  of  express  matter.  For 
these  reasons  the  express  companies  have  contended  that  they 
should  not  be  held  liable  to  the  extraordinary  liability  that  at- 
taches to  common  carriers  of  goods,  but  should  be  held  simply 
liable  as  forwarders,  and  liable  only  for  ordinary  negligence  and 
required  to  exercise  only  ordinary  diligence.  These  contentions, 
however,  have  not  found  favor  in  the  courts,  and  it  may  be  said 
to  be  settled  that  express  companies  are  common  carriers;  and 
this  conclusion  seems  to  have  been  arrived  at  because  of  the  usual 
course  of  business  of  such  companies.  The  goods  are  intrusted  to 
them  to  be  carried  and  delivered  to  the  consignee,  not  by  any  par- 
ticular route  or  in  any  particular  way;  the  company  may  send 
them  by  railroad  trains  or  by  steamboats,  or  by  any  way  it  pleases 
so  that  they  are  delivered  within  a  suitable  time  to  the  person 
to  whom  they  are  consigned.  It  is  also  understood  and  ex- 
pected, and  from  the  usual  course  of  business  the  company  im- 
pliedly agrees,  that  an  agent  or  manager,  as  he  is  called,  of  the 
company's  own  appointing,  will  accompany  the  goods  and  take 
particular  charge  and  care  of  them  on  the  route.  For  this  reason 
it  cannot  be  said  that  the  company  does  not  have  entire  custody 
and  control  of  the  property  during  the  entire  time  of  transit. 
Upon  their  arrival  in  the  city  or  town  to  which  they  are  sent,  the 
manager  or  agent  at  once  delivers  them  to  the  local  agent  of 
the  company,  who  takes  charge  of  them  and  delivers  or  causes 
them  finally  to  be  delivered  to  the  consignee  in  person,  or  to 
his  place  of  business  or  residence,  and  to  persons  authorized  to 

ments  in  their  application  to  such  mitted,  for  the  purpose  of  show- 
transportation."  In  Levi  v.  Lynn  ing  them  to  be  common  carriers, 
&  Boston  R.  Co.,  11  Allen,  300,  in  to  prove  that  other  persons  had 
an  action  against  a  street  railway  paid  money  to  their  conductors, 
corporation  to  recover  for  the  with  the  knowledge  of  their  super- 
loss  of  a  box  of  merchandise  de-  intendent,  for  the  carriage  of  mer- 
livered  them  to  be  carried  for  hire  chandise  by  them.  The  company 
on  the  front  platform  of  one  of  was  held  liable  for  the  value  of 
their  cars,  the  plaintiff  was  per-  the  box. 


414 


CARRIERS. 


[§  421. 


receive  them,  so  that  the  property  sent  by  express  companies 
may  be  said  to  be  more  exclusively  and  particularly  in  the  con- 
trol of  the  express  companies  during  transit  than  in  most  cases 
where  property  is  transferred  by  common  carriers.  The  su- 
preme court  of  Massachusetts,  in  Bucklund  v.  Adams  Express 
Co.,^^  very  fully  and  clearly  discusses  this  question,  holding  that 
the  name  or  style  under  which  they  assume  to  carry  on  their 
business  is  wholly  immaterial;  the  real  nature  of  their  occupa- 
tion, and  of  the  legal  duties  and  obligations  which  it  imposes  on 
them,  is  to  be  ascertained  from  a  consideration  of  the  kind  of 
service  which  they  hold  themselves  out  to  the  public  as  ready  to 
render  to  those  who  may  have  occasion  to  employ  them.  Upon 
this  point  there  is  no  room  for  doubt.     They  exercise  the  em- 


25  97  Mass.  124,  93  Am.  Dec.  68: 
Dwight  V.  Brewster,  1  Pick.  50,  53; 
2  Redfield  on  Railways,  1-16; 
Kentucky  Bank  v.  Adams  Exp. 
Co.,  93  U.  S.  174;  Christenson  v. 
American  Exp.  Co.,  15  Minn.  270, 
2  Am.  Rep.  122.  In  this  case  the 
express  company  undertook  by 
their  receipt  to  the  consignor  to 
limit  their  liability  to  mere  for- 
warders. The  court  in  its  opinion 
makes  a  full  statement  of  the 
course  of  business  of  the  express 
company,  stating  that  they  are  en- 
gaged probably  in  the  business  of 
transmitting  for  hire  goods  from 
place  to  place.  That  they  estab- 
lish local  offices  at  which  agents 
are  stationed  whose  duty  it  is  to 
receive  goods  transmitted  and  de- 
liver the  same  to  the  consignee  as 
well  as  to  receive  goods  for  trans- 
mission; that  the  express  compa- 
nies own  no  vehicles  or  other 
means  of  transportation  except 
such  as  are  kept  at  their  local 
office  and  used  for  carrying  goods 
to  and  from  such  office  and  to 
their  customers;  that  the  practice 
of  the  company  is  to  transmit 
goods  by  steamboats,  railroads, 
coaches,  etc.,  owned  and  controlled 
by  other  parties.    That  a  messen 


ger  of  the  company  accompanies 
the  goods  in  their  transmission. 
After  a  full  statement  of  the  case, 
and  holding  that  the  express  com- 
pany is  a  common  carrier,  the 
court  say:  "The  defendants  style 
themselves  express  forwarders  and 
they  agree  to  forward  the  goods, 
but  this  language  does  not  neces- 
sarily give  them  the  character  of 
simple  forwarders,  nor  prevent 
them  from  being  treated  as  com- 
mon carriers."   Read  v.  Spaulding, 

5  Bosw.  404;  Sweet  v.  Barney,  23 
N.  Y.  335;  U.  S.  Exp.  Co.  v.  Back- 
man,  28  Ohio  St.  144;  Verner  v. 
Sweitzer,  32  Pa.  St.  208;  Southern 
Exp.  Co.  v.  McVeigh,  20  Grat. 
(Va.)  264;  Hutchinson  on  Car- 
riers, 68-71;  2  Redfield  on  Rail- 
ways, 19-30;  Merchants'  Disp.  Co. 
V.  Bloch,  86  Tenn.  392,  held:  "A 
transportation  company  not  own- 
ing or  controlling  any  means  of 
conveyance  itself,  but  engaging  on 
its  own  behalf  in  the  business  of 
transporting  goods  through  the 
agency  and  over  the  lines  of  other 
carriers  of  its  own  selection  and 
employment,  is  a  common  carrier, 
and  subject  to  all  the  responsibili- 
ties attaching  to  that  character." 

6  Am.  St.  Rep.  847. 


§    423.]  PUBLIC  OR  COMMON  CARRIERS.  415 

ployment  of  receiving,  carrjdng  and  delivering  goods,  wares  and 
merchandise  for  hire  on  behalf  of  all  persons  who  may  see  fit  to 
require  their  services.  In  this  capacity  they  take  property  from 
the  custody  of  the  owner,  assume  entire  possession  and  control 
of  it,  transport  it  from  place  to  place,  and  deliver  it  at  the  point 
of  destination  to  a  consignee  or  agent  there  authorized  to  receive 
it.  This  statement  embraces  all  the  elements  essential  to  consti- 
tute the  relation  of  common  carrier  on  the  part  of  express  com- 
panies toward  the  persons  who  employ  them. 

§  422.  Fast-freight  lines,  dispatch  companies,  etc. — A 

very  large  trade  or  class  of  business  has  grown  up  and  is  carried 
on  by  companies  calling  themselves  dispatch  companies,  fast- 
freight  lines,  etc.  These  companies  generally,  but  not  always, 
own  their  own  vehicles  or  cars,  in  which  the  goods  intrusted  to 
them  for  carriage  are  transported,  employing  railroad  companies 
to  haul  them  to  their  destination ;  but  in  some  cases  when  not  us- 
ing their  own  cars,  they  employ  the  railroad  companies  to  trans- 
port the  freight  in  their  vehicles ;  all  such  companies  are  held  to 
be  common  carriers  and  are  held  to  the  extraordinary  liability 
that  attaches  to  such  carriers.  They  receive  the  freight  from 
the  consignor,  and  contract  to  carry  it  and  deliver  it  to  the  con- 
signee. The  custody  and  control  of  the  property  is  handed  over 
to  these  companies  by  the  consignor  for  the  purpose  of  being 
transported.  They  take  the  property  into  their  custody  and 
control,  and  are  obliged  by  their  contract,  express  or  implied,  to 
carry  and  deliver  it  to  the  consignee.  They  are  bound  to  comply 
with  all  the  requirements  incident  to  the  business  of  a  common 
carrier,  and  are  held  to  the  same  liability.^® 

§  423.  Transfer  companies. — So  companies  in  the  sev- 
eral towns  and  cities  who  solicit  the  business  of  transferring  for 
all  who  apply  to  them  and  pay  the  compensation,  baggage  or 

26  Bank  of  Kentucky  v.  Adams  to    constitute   another    person    or 

Ex.  Co.,  93  U.  S.  174.    It  was  held  corporation  the  agent  of  his  con- 

"that  a  party  engaged  as  a  com-  signor  or  consignee;   he  may  em- 

mon  carrier  cannot  by  declaring  ploy   an   agency,   but   it   must  be 

or   stipulating   that  he   shall   not  subordinate  to  himself  and  not  to 

be   so   considered    divest   himself  the  shipper,  who  neither  employs 

of   the    liability    attached    to    the  it,  pays  it,  nor  has  any  right  to 

fixed  legal  character  of  that  occu-  interfere  with  it;  its  acts  become 

pation.     A   common   carrier   who  his   because   done   in   his   service 

undertakes  for  himself  to  perform  and   by   his   direction."     Hutchin- 

an  entire  service  has  no  authority  son  on  Carriers,  sec.  72. 


416  CARRIERS.  [§    424. 

freight  from  one  railroad  or  steamboat  station  to  another,  or  who 
deliver  baggage  or  freight  to  the  owners  and  consignees,  are  com- 
mon carriers,  and  as  such  liable  for  the  loss  of  or  injury  to  the 
property.  It  has  been  held,  however,  that  when  these  companies 
transfer  freight  between  connecting  carriers  they  are  acting  as 
the  agents  of  the  carriers,  and  are  not  liable  as  common  carriers, 
upon  the  principle,  it  would  seem,  that  the  control  of  the  goods 
is  not  in  their  hands,  but  is  with  the  carriers  who  employ  them. 
A  late  case  has  held  that  this  is  the  rule  when  transferring  goods 
at  the  end  of  the  route  to  the  consignee,  the  transfer  company 
acting  for  the  carrier.^^ 

§  424.  Railroad  companies. — Railroad  companies  are,  as  has 
been  said  by  an  eminent  jurist,  "eminently  common  carriers," — 
common  carriers  of  passengers  and  common  carriers  of  freight. 
As  common  carriers  of  passengers  their  duties  and  liabilities  are, 
as  we  shall  see,  very  different  from  their  duties  and  liabilities 
as  common  carriers  of  goods.  That  they  hold  themselves  out  to 
the  public  as  common  carriers  there  can  be  no  doubt.  Their 
whole  purpose  and  aim  and  course  of  business  proclaim  that 
their  desire  and  business  is  to  carry  the  goods  of  all  who  call 
upon  them  for  that  service.  They  are  the  most  important  of 
the  carriers.  Railroad  companies  construct  their  great  thorough- 
fares through  the  country  for  the  purpose  of  meeting  the  de- 
mands of  the  public  for  the  transportation  of  merchandise  and 
passengers.  They  have  often  been  the  pioneers  of  new  and  unde- 
veloped sections  of  country,  pushing  their  way  across  the  broad, 
uncultivated  prairies  of  the  west,  eyen  scaling  the  great  moun- 
tain ranges,  opening  new  agricultural  interests,  developing  the 
farms,  showing  the  mine  owners  of  the  immense  coal  and  iron 
fields  as  well  as  of  the  more  precious  metals  a  way  to  the  great 
markets  of  the  world,  at  the  same  time  making  it  possible  to 

27  Nansen  v.  Jacobs,  12  Mo.  App.  transfer   company  for   an   agreed 

125;   aflBrmed,  93  Mo.  331,  30  Am.  compensation  to  procure  his  bag- 

&  Eng.  R.  Cases,  553;  Western  R.  gage  from  the  railroad  company's 

Co.  V.  Cotton  Mills,  81  Ga.  522;  Da  depot  and  haul  it  to  his  residence, 

Pointe   V.   New  Orleans   Transfer  and  for  that  purpose  surrendered 

Co.,    42    La.    An.    696;    Verner    v.  his   baggage    checks.      Held,    that 

Sweitzer,   32   Pa.    St.   208.     In  Da  the  transfer  company  was  respon- 

Pointe  V.  Transfer  Co.,  "a  passen-  sible    to    the    passenger    for    the 

ger  on  a  railway  train,  having  ar-  safe-keeping  and   delivery  of  the 

rived  at  the  point  of  destination,  baggage." 
entered    into    a    contract    with    a 


§  426.] 


PUBLIC  OR  COMMON  CARRIERS. 


417 


operate  and  develop  these  valuable  properties,  and  always  solicit- 
ing the  great  carrying  trade  as  common  carriers.-^ 

§  425.  Receivers  and  trustees. — And  so  it  may  be  said  that 
receivers  and  trustees  of  railroad  companies,  who  operate  the 
road  as  such  officers,  are  common  carriers;  they  are  simply  the 
agents  of  the  company,  subject  to  the  same  liability. 

§  426.  Not  all  railroad  companies  are  common  cairiers. 

—There  are,  as  it  is  well  understood,  railroads  built  and  operated 
by  private  persons,  companies  or  corporations  for  their  own  pri- 
vate use ;  as,  for  example,  logging  roads,  built  for  the  purpose  of 
hauling  out  logs  from  tracts  of  timber  land ;  roads  built  into  coal- 
mines or  iron-mines,  used  only  and  exclusively  for  the  accommo- 
dation of  the  particular  property  of  the  owners;  ^^  or  where  the 
company  owns  and  furnishes  the  motive  power  and  rolling-stock, 
all  of  which  is  operated  and  controlled  by  others.^"     It  is  the 


28  Norway  Plains  Co.  v.  Boston 
&  M.  R.  Co.,  1  Gray,  263,  269. 
"That  railroad  companies  are  au- 
thorized by  law  to  make  roads 
as  public  highways,  to  lay  down 
tracks,  place  cars  upon  them,  and 
carry  goods  for  hire,  are  circum- 
stances which  bring  them  within 
all  the  rules  of  the  common  law 
and  make  them  eminently  com 
mon  carriers.  Their  iron  roads 
though  built,  in  the  first  instance 
by  individual  capital,  are  yet  re 
garded  as  public  roads,  required 
by  common  convenience  and  ne- 
cessity, and  their  allowance  by 
public  authority  can  only  be  justi- 
fied on  that  ground.  The  general 
principle  has  been  uniformly  so 
decided  in  England  and  in  this 
country;  and  the  point  is  to  ascer- 
tain the  precise  limits  of  their  lia- 
bility. .  .  .  Being  liable  as  com- 
mon carriers,  the  rule  of  the  com- 
mon law  attaches  to  them,  that 
they  are  liable  for  losses  occur- 
ring from  any  accident  which  may 
befall  the  goods  during  the  tran- 
sit, except  those  arising  from  the 
act  of  God  or  a  public  enemy." 
27 


Thomas  v.  Boston,  etc.  R.  Co.,  10 
Met.  472,  43  Am.  Dec.  444;  Sand- 
ford  v.  Catawissa,  etc.  R.  Co.,  24 
Pa.  St.  376,  64  Am.  Dec.  667.  In 
Messenger  v.  Pa.  R.  Co.,  36  N.  J. 
Law,  407,  13  Am.  Dec.  457,  the 
court  say:  "In  my  opinion  a  rail- 
road company,  constituted  under 
statutory  authority,  is  not  only  by 
force  of  its  inherent  nature  a  com- 
mon carrier,  .  .  .  but  it  be- 
comes an  agent  of  the  public  in 
consequence  of  the  power  con- 
ferred upon  it." 

29  Wade  V.  Lutcher,  etc.  Co.,  74 
Fed.  517;  Avinger  v.  S.  C.  R.  Co., 
29  S.  C.  265,  13  Am.  St.  Rep.  716. 

30  In  Coup  V.  Wabash,  St.  L.  & 
P.  R.  Co.,  56  Mich.  Ill,  the  plaint- 
iff had  a  large  circus  property, 
including  horses,  wild  animals  and 
various  paraphernalia,  with  tents 
and  appliances  for  exhibition.  He 
owned  special  cars  fitted  up  for 
the  carriage  of  performers  and 
property,  in  which  the  whole  con- 
cern was  moved  from  place  to 
place  for  exhibition.  Plaintiff 
made  a  written  contract  with  de- 
fendants   to   the    effect   that   the 


'418  CARRIERS.  [§   427. 

offering  to  use,  and  operating  the  road  for  the  public  to  carry 
the  goods  of  all  who  come,  that  makes  the  company  liable  as  com- 
mon carriers. 

§  427.  Who  are  not  common  carriers. — While  we  will  not  at 
this  time  enumerate  all  who  are  engaged  in  seemingly  gwas*-pub- 
lic  service  or  business  who  are  not  common  carriers,  it  perhaps 
may  be  well  to  mention  some  of  the  avocations.  Warehousemen 
and  forwarding  merchants  are  held  simply  as  bailees  of  the 
mutual-benefit  class,  and  liable  for  ordinary  negligence  and  held 
to  ordinary  diligence.^^  So  also  sleeping-car  companies;  these 
companies  do  not  control  the  trains  which  draw  their  cars,  but 
are  simply  leased,  as  a  general  rule,  by  the  railroad  company 
that  operates  the  train.  The  railroad  company  itself  is  liable  so 
far  as  any  extraordinary  liability  might  attach.  The  sleeping- 
car  companies  are  only  liable  in  cases,  as  we  shall  see  later,  where 
they  have  taken  the  custody  or  control  of  the  baggage  of  the 
passengers.  So  telegraph  and  telephone  companies,  postmasters, 
mail  contractors,  and  many  others;  none  of  them  are  held  to  be 
common  carriers.^^  And  it  has  been  held  that  canal  companies 
are  not  common  carriers  in  the  sense  that  they  are  bound  for  the 
safe  navigable  state  of  the  canal,  being  only  bound  to  the  exer- 
cise of  reasonable  care ;  ^^  and  that  a  canal  company  is  not  liable 
as  a  common  carrier  for  timber  lost  from  rafts  transported  by 
it,  by  theft,  sinking  or  otherwise.^* 

railroad  company  was  to  furnish  arrangement  as  an  agreement  for 

men  and  motive  power  to  transfer  carriage  at  all.     .     .     .    All  these 

the  circus  train  by  one  or  more  special    undertakings    have    pecu- 

divisions   from    Cairo    to   Detroit,  liar  features  of  their  own,  but  they 

with  privilege  of  stopping  for  ex-  cannot    be    brought    within     the 

hibition   at    three    places    named,  range  of  common  carriage."  Mann 

fixing  the   time  of  starting  from  v.  White  River,  etc.  Co.,  46  Mich. 

each   place  of  exhibition;    plaint-  38;    Chicago,  etc.  R.  Co.  v.  Wal- 

iff  to  furnish  his  own  cars,   and  lace,  66  Fed.  506. 

two    from    another    company    in  ai  Denny  v.   N.   Y.   Cent.   R.   R. 

good  condition  and  running  order.  Co.,  13  Gray,  481,  115  Mass.  332,  8 

A    stipulated    price    was    agreed  Cow.  223. 

upon   which   the   plaintiff  was   to  32  Mann  v.  Logging  Co.,  46  Mich. 

pay.    Under  such  a  state  of  facts  38,  41  Am.  Rep.  149. 

the  court  held  that  the  railroad  ss  Pa.  Canal  Co.  v.  Burd,  90  Pa. 

company  was  not  liable  as  com-  St.  281,  31  Am.  Rep.  659. 

mon  carriers.  The  court  say  "it  is  34  Watts  v.   S.  &  O.  Canal  Co., 

a  misnomer  to  speak  of  such  an  64  Ga.  88,  37  Am.  Rep.  53. 


CHAPTER  III. 


CAHRIERS  OF  GOODS— SOME  ESSENTIALS  THAT  FIX  THE  LIA- 
BILITY OF  COMMON  CARRIERS. 


§  428 


429. 


430. 


Object  of  the  chapter — 
Some  presumptions. 

Certain  facts  must  be 
proven. 

Delivery  of  the  property 
for  transportation. 

431.  The  place  of  delivery. 

432.  Usage  and  custom. 

433.  Actual  notice  of  deposit  of 

goods. 

434.  Time  of  delivery. 

435.  By  whom  must  delivery  be 

made  and  to  whom. 


§  436 


To  whom  must  deliv- 
ery be  made. 

Facts   relied   upon   to 

show  apparent  authority 
must  be  clear. 

Agents    authorized    to    re- 
ceive. 
439.  Constructive  delivery. 

Rules  permitting  construct- 
ive delivery  must  be  ap- 
plied with  great  caution. 


437. 


438. 


440. 


§  428.  Object  of  the  chapter — Some  presumptions. — We  have 
discussed  in  the  previous  chapter  some  of  the  essential  requisites 
of  a  common  carrier,  determining  that  these  requisites  must  exist 
in  the  given  case  before  one  can  be  held  to  be  a  common  carrier. 
It  is  the  object  of  this  chapter  to  discuss  the  facts  or  essentials 
that  must  exist  in  order  to  fix  upon  the  carrier  liability  for  loss 
or  injury  of  property  delivered  to  him  for  carriage.  From  what 
has  been  said  it  follows  that  certain  persons  and  companies  hold- 
ing themselves  out  to  the  public  as  ready  to  transport  the  goods 
of  others  for  hire  are  common  carriers,  and  so  unquestionably 
and  notoriously  do  they  possess  all  the  requisites  that  the  courts 
without  especial  proof  of  these  requisites  will  presume  them 
to  be  such,  and  should  they  deny  the  relation,  namely,  that 
they  are  common  carriers,  the  burden  of  proving  that  they  are 
not  would  be  upon  them,  as  the  presumption  is  so  strong  and 
the  fact  so  generally  understood ;  as,  for  example,  railroad  com- 
panies, steamboat  companies,  express  companies,  and  all  such 
persons  and  companies  are  are  generally  known  to  follow  the 
pursuit  of  carrying  goods  for  all  who  apply  to  them  and  pay  the 
compensation.  But  to  fix  the  liability  for  loss  or  injury  to  the 
property  carried  by  these  common  carriers  much  more  is  re- 


420  C.VJRRIERS.  [§   430. 

quired,  for  the  carrier  is  not  called  upon  to  respond  in  every 
case  of  loss,  nor  is  he  at  all  times  liable  to  the  extraordinary  lia- 
bility.i 

§  429.  Certain  facts  must  be  proved. — Before  the  extraordi- 
nary liability  can  attach  it  must  be  shown  that  the  goods  lost  or 
injured  were  delivered  to  the  carrier  for  transportation  in  the 
usual  and  ordinary  manner,  and  were  of  such  a  kind  as  the  car- 
rier holds  out  to  the  public  he  will  carry,  and  as  he  is  reasonably 
expected  by  the  public  to  carry.  The  element  that  has  much  to 
do  with  fixing  the  liability  is  the  placing  of  the  property  in  cus- 
tody and  exclusive  control  of  the  carrier  for  the  time  for  trans- 
portation. Then,  too,  the  kind  of  goods,  as  we  shall  see,  has 
much  to  do  with  fixing  the  liability,  or  rather,  perhaps,  in  ex- 
cusing the  carrier  from  it;  as,  for  example,  whether  the  goods  or 
property  are  animate  or  inanimate ;  whether  perishable  or  other- 
wise, or  whether  from  their  own  inherent  nature  liable  to  de- 
struction or  injury;  for  the  common  and  ordinary  understand- 
ing of  men  would  lead  one  to  know  that  the  duties  of  the  com- 
mon carrier  would  be  very  much  different  in  handling  animate 
or  inanimate  freight,  or  perishable  or  destructible  property,  be- 
cause of  its  own  inherent  nature,  from  that  which  is  otherwise. 
Then,  too,  to  fix  the  liability,  it  must  further  appear  that  the 
loss  or  injury  occurred  while  the  property  was  in  the  course  of 
transportation,  and  that  the  loss  or  injury  was  not  occasioned 
by  any  cause  for  which  the  common  carrier  could  not  be  held 
legally  liable.  Each  of  these  several  questions  calls  for  consid' 
eration,  together  with  others  that  are  important  in  fixing  the  lia- 
bility of  the  carrier. 

§  430.  Delivery  of  the  property  for  transportation. — The  pri- 
mary essential  in  fixing  the  liability  of  the  carrier  is  the  delivery 
to  him  of  the  property  by  the  shipper  for  carriage,  or  the  tender- 
ing of  the  same  in  some  cases.  This  delivery  may  be  largely 
regulated  by  the  reasonable  rules  and  regulations  of  the  carrier, 
and,  when,  so  regulated,  the  shipper  must  follow  these  regula- 
tions as  well  as  the  requirements  of  the  law.  The  delivery  must 
be  complete;  the  property  placed  in  the  custody  and  entire  con- 
trol of  the  carrier  for  immediate  transportation.-     If  it  is  de- 

1  Hutchinson  on  Carriers,  §  73.  goods   for   immediate    transporta- 

2  The  liability  of  the  carrier  tion,  with  the  knowledge  and  con- 
does  not  begin  until  there  has  sent  of  the  carrier.  Louisville, 
been  a  complete  delivery  of  the  etc.   R.   Co.   v.  United   States,   39 


§    430.]  ESSENTIALS   THAT   FIX   LIABILITY.  421 

livered  with  the  understanding  that  it  is  to  be  held  in  the  com- 
mon carrier's  warehouse  for  a  time,  or  until  the  happening  of 
some  event  which  is  to  decide  the  question  as  to  where  the  con- 
signor will  ship  it,  or  it  it  is  to  be  held  for  any  length  of  time 
and  then  shipped,  it  cannot  be  said  to  be  a  delivery  for  shipment 
in  the  sense  that  binds  the  carrier  to  the  extraordinary  liability 
during  the  interim  between  such  delivery  and  shipment;  and  in 
such  case,  as  we  shall  see,  the  carrier  for  that  time  is  only  an 
ordinary  bailee  of  the  property,  from  whom  is  required  ordinary 
diligence  in  caring  for  it.  It  is  the  complete  delivery  for  im- 
mediate transportation,  the  surrendering  of  the  entire  custody 
and  control  of  the  property  for  the  time  for  transportation,  that 
fixes  the  liability  of  the  common  carrier;  this  is  the  important 
essential.  And  so  it  has  been  held  that  the  relation  of  shipper 
and  carrier  does  not  begin  between  the  owner  of  the  goods  and 
the  common  carrier,  though  the  former  may  have  delivered  the 
goods  to  the  latter,  if,  after  such  delivery,  anything  is  required 
or  remains  to  be  done  by  the  shipper,  either  because  of  the  con- 
tract for  shipment  or  on  account  of  any  of  the  rules  or  regula- 
tions of  the  company.^  And  where  the  goods  were  receipted  for 
by  the  carrier's  agent,  who  had  no  knowledge  of  their  delivery 
except  a  slip  signed  by  the  boatman,  it  was  held  that  no  liability 
was  created,  the  goods  in  fact  not  having  been  delivered  to  the 
carrier.*     And  where  the  agent  of  the  carrier  merely  gave  the 

Ct.  CI.  405;   Garner  v.  St.  Louis,  volves  a  surrender  of  custody  and 

etc.  R.  Co.   (Ark.),  96  S.  W.  187;  control  for  the  time  being  by  the 

Merritt  v.  Old  Colony,  etc.  R.  Co.,  consignor."     St.  Louis,  M.  &  S.  R. 

11    Allen    (Mass.),    80;    Berry    v.  Co.  v.  Insurance  Co.,  139  U.  S.  223; 

Southern  R.  Co.,  122  N.   C.   1002,  Leigh  v.  Smith,  1  Car.  &  P.  638; 

30  S.  E.  14.    Where  delay  was  due  Dixon    v.    Railroad    Co.,    110    Ga. 

to  failure  of  railroad  company  to  173.       Where     hogs     had     been 

furnish    cars,    carrier    liable    for  brought  to  the  railroad  station  to 

goods,    although    the    shipper    by  be   transported,   but   at   the   time 

the  contract  was  obliged  to  load  the  train  arrived  upon  which  they 

the  freight.     London,   etc.   Co.   v.  were  to  be  taken  they  were  still 

Rome,  etc.  R.  Co.,  114  N.  Y.  200,  in  a  private  yard,  and  had  still  to 

39  N.  E.  79,  43  Am.  St.  Rep.  752.  be  loaded,  counted  and  receipted 

3  It  was  held  in  Wilson  v.  At-  for,  it  was  held  that  delivery  was 

lanta,  etc.  R.  Co.,  82  Ga.  386,  that  not   complete,    and    the   company 

"delivery  of  goods   to   a  common  could  not  be   held   liable   for  the 

carrier  for  transportation, whether  delay.    Frazier  v.  Railroad  Co.,  48 

actual    or    constructive,    being    a  Iowa,  571. 

bailment,    involves   exclusive   pos-  *  The   Willie   D.    Sandhoval,    92 

session  in  the  carrier,  and  this  in-  Fed.    286;     St.    Louis    R.    Co.    v. 


422  CARRIERS.  [§    431. 

shipper  permission  to  place  his  cattle  in  the  company's  yards,  no 
bill  of  lading  having  been  given,  in  such  case  the  company  is  not 
rendered  liable  for  damages  caused  by  the  escape  of  the  cattle.^ 

§  431.  The  place  of  delivery. — When  the  goods  have  really 
been  delivered  to  the  carrier  for  shipment,  according  to  the  re- 
quirements mentioned  in  the  previous  section,  and  have  been  re- 
ceived for  that  purpose  by  the  carrier  or  his  agent,  his  liability 
as  a  common  carrier  commences.  Indeed,  the  goods  have  already 
legally  started  upon  their  journey;  they  are  in  transit  as  much 
as  though  they  had  been  loaded  into  the  carrier's  vehicle  and 
were  being  carried  over  the  road.  The  carrier,  however,  has  the 
right  to  know  that  the  property  has  been  delivered  for  carriage, 
and  it  has  been  said  that  no  legal  delivery  can  be  made  without 
his  knowledge.  The  carrier  has  the  right,  by  reasonable  rules 
and  regulations,  to  fix  the  place  where  freight  shall  be  delivered 
for  transportation,  and  usually  in  cases  of  railway  companies  or 
transportation  companies  the  place  designated  is  at  the  ware- 
house of  the  company,  or  at  some  other  convenient  place  named 
by  the  carrier.  And  so  it  has  been  held  that  freight  left  upon 
the  platform  or  upon  the  dock,  or  deposited  on  a  switch,  or  along 
the  roadside,  even  though  one  of  the  company's  servants  promised 
to  stop  the  train  there  and  take  it  on;  or  the  loading  of  goods 
upon  a  car  standing  on  the  side-track  at  the  carrier's  depot,  done 
without  the  knowledge  of  the  agent;  or  depositing  goods  in  the 
yard  of  an  inn  from  which  the  carrier  starts  his  coaches,  and 
not  at  a  place  or  one  of  the  places  designated  for  receiving  goods 
for  shipment  by  the  company,  is  not  a  delivery  to  the  carrier 
in  such  a  way  as  to  render  him  liable  as  such  for  its  loss  or  in- 
jury.« 

KnigM,  122  TJ.  S.  79,  30  Lawyers'  &  L.  Ins.  Co.  v.  Rome,  W.  &  O. 

ed.  1077,  held  that  the  relation  is  R.  Co.,  23  N.  Y.  S.  231. 

not  established  until  the  specific  s  Oman  v.  Bedford,  etc.  Co.,  67 

lots  of  property  intended  for  the  C.    C.    A.    190,    134    Fed.    64;    In 

carrier  have  been  separated  and  Grosvenor  v.  Railroad  Co.,  39  N. 

set    apart    and    delivered    to    the  Y.  34,  the  court  say:   "To  render 

carrier  for  immediate  transporta-  a  party  liable  as  a  common  carrier 

tion  according  to  the  terms  of  the  it   must  be   established   that   the 

bill  of  lading.  property  was  actually  delivered  to 

5  Ft.    Worth    &    D.    R.    Co.    v.  the   common   carrier,  or   to   some 

Riley,  1  S.  W.  446;   Louisville  &  person  duly  authorized  to  act  on 

N.  R.  Co.  V.  Echols,  97  Ala.  556,  12  his  behalf.     The  responsibility  of 

So.  304;    Bennett  v.  The  Guiding  the    carrier    does    not    commence 

Star  (D.  C),  53  Fed.  936;  London  until  the  delivery  is  completed.    It 


§    432.]  ESSENTIALS   THAT   FIX   LIABILITY.  423 

§  432.  Usage  and  custom. — While  the  law  demands  a  full 
compliance  with  the  rules  governing  the  delivery  of  the  goods  to 
the  carrier  and  to  the  reasonable  regulations  of  the  carrier,  never- 
theless these  rules  and  regulations  are  more  or  less  varied  and 
limited  by  usage  and  custom  long  continued,  and  which  have 
become  well  understood  by  shippers  and  the  public,  and  are  in 
good  faith  acted  upon.  In  fact,  where  such  usage  and  custom 
has  prevailed  and  for  a  long  time  been  acquiesced  in  without 
change  or  objection  by  the  carrier,  it  may  be  said  that  rules  and 
regulations,  so  far  as  they  infringe  upon  such  usage  and  custom, 
have  been  displaced  and  are  of  no  legal  effect.  And  so  the  goods 
delivered  for  shipment  in  accordance  with  well  established  usage 
and  custom  will  render  the  carrier  liable,  even  though  it  be  at  a 
place  outside  of  the  carrier's  warehouse,  and  at  another  place 
than  that  fixed  by  the  express  rules  and  regulations  of  the  com- 
pany. But  in  such  case  the  usage  must  be  strictly  followed,  and 
where  it  had  become  a  custom  accepted  and  understood  that 
goods  might  be  delivered  to  the  mate  of  the  ship,  it  was  held  that 
this  custom  or  usage  was  not  complied  with  by  merely  leaving 
the  property  on  the  wharf.^  In  Wright  v.  Caldwell,^  the  plaint- 
iff, intending  to  take  passage  on  the  steamboat  of  defendant,  de- 
posited his  trunk  on  board  in  the  usual  place  for  baggage,  but 
without  putting  it  in  charge  of  any  person,  or  notifying  any  one 
employed  on  the  boat  of  such  deposit,  or  of  his  intention  to  take 
passage,  and  while  temporarily  absent  from  the  boat  she  started 
on  her  trip  and  he  was  left.    The  trunk  could  not  afterwards  be 

is  not  enough  that  the  property  is  §  532;  Packard  v-  Getman,  6  Cow. 

delivered   upon  the   premises   un-  757;    Trevor  v,  U.  &  S.  R.  Co.,  7 

less  the  delivery  is  accompanied  Hill,   47;    Blanchard   v.    Isaacs,    3 

by   notice   to  the   proper   person.  Barb.    388;    2    Kent's    Com.    604; 

The    liability    of    the    carrier    at-  Dixon  v.  Railroad  Co.,  110  Ga.  173 ; 

taches  only  from  the  time  of  the  Louisville  R.  Co.  v.  Flanigan,  113 

acceptance  of  the  goods  by  him.  Ind.    488,    3    Am.    St.    Rep.    674; 

To  complete  the  delivery  of  the  Brown  v.  Atlanta,  etc.  R.  Co.,  19 

property,    within    the    rules    laid  S.  C.  39,  13  Am.  &  Eng.  R.  Cas. 

down  in  the   authorities,  I   think  479;  Houston  R.  Co.  v.  Hodde,  42 

it  is  also  essential  that  the  prop-  Tex.    467;    Wilson    v.   Atlanta   R. 

erty  should  be  placed  in  such  a  Co.,  82  Ga.  386,  40  Am.  &  Eng.  R. 

position  that  it  may  be  taken  care  Cas.  25. 

of  by  the  agent  or  person  having  ^  Leigh   v.   Smith,   1   Car.   &   P. 

charge  of  the  business  and  under  639. 

his    immediate    control."      Angell  s  3  Mich.  51. 
on  Car.,  §  129;    Story  on  Bailm., 


'424  CAERIERS.  [§   432. 

found.  The  court  say:  "It  is  admitted  by  the  counsel  for  the 
plaintiff  that  to  hold  a  common  carrier  liable  in  respect  to  prop- 
erty lost  in  the  course  of  his  employment,  it  is  incumbent  on  him 
to  show  a  delivery  of  the  property  to  the  carrier,  and  its  accept- 
ance by  him,  for  purposes  contemplated  by  the  parties.  But 
while  this  general  principle  of  law  is  unquestioned,  its  force  and 
effect  is  sought  to  be  obviated  by  the  special  circumstances  of 
this  case.  It  is  contended  that  the  general  principle  is  con- 
trolled by  the  usage  established  by  the  proof.  It  is  well  settled 
by  a  series  of  adjudications  of  high  authority,  that  if  a  uniform 
custom  is  established  and  recognized  by  the  carrier,  and  is 
known  to  the  public,  that  property  intended  for  carriage  may 
be  deposited  in  a  particular  place  without  express  notice  to  him, 
that  a  deposit  of  property  for  that  purpose  in  accordance  with 
the  custom  is  constructive  notice,  and  would  render  any  other 
form  of  delivery  unnecessary.  The  rule  is  founded  in  reason; 
as  the  usage,  if  habitual,  is  a  declaration  by  the  carrier  to  the 
public  that  a  delivery  of  property  in  accordance  with  the  usage 
will  be  deemed  an  acceptance  of  it  for  the  purpose  of  transpoir- 
tation."  And  where  it  appeared  that  by  local  custom,  well  un- 
derstood and  accepted  by  the  shipper  and  carrier,  goods  might 
be  delivered  for  shipment  by  placing  them  on  the  platform  of 
the  depot,  it  was  held  that  such  a  delivery  would  support  an 
action  for  goods  so  delivered  which  were  destroyed  by  fire  set  by 
boys  allowed  to  play  upon  that  platform.*  And  where  it  was 
shown  to  be  the  "constant  and  habitual  practice  and  usage  of 
the  carrier  to  receive  the  goods  when  they  are  deposited  for  him 
in  a  particular  place  without  special  notice  of  such  deposit,  it 
was  held  sufficient  to  show  a  public  offer  by  the  carrier  to  re- 
ceive goods  in  that  mode,  and  to  constitute  an  agreement  be- 
tween the  parties  by  which  the  goods  when  so  deposited  shall 
be  considered  as  delivered  to  him  without  any  further  notice. 
Such  a  practice  and  usage  are  tantamount  to  an  open  declara- 
tion, a  public  advertisement  by  the  carrier,  that  such  a  delivery 
should  of  itself  be  deemed  an  acceptance  by  him,  and  to  permit 
him  to  set  up  against  those  who  had  been  thereby  induced  to 
omit  it,  the  want  of  the  formality  of  an  express  notice  which  had 
been  thus  waived,  would  be  sanctioning  injustice  and  fraud. ' '  ^** 

9  Ft.  Worth  &  D.  R.  Co.  v.  Mar-      Am.  Rep.  54,   18  Am.   &  Eng.  R. 
tin,  12  Tex.  Civ.  App.  464.  Cas.    512;    Hutch,    on    Car.    §    90, 

10  Montgomery,    etc.    R.    Co.    v.      The  above,  taken  from  the  opinion 
Kolb   et   al.,   73   Ala.   396-405,   40      of  the  court,  is  quoted  from  Hutch- 


§    434.]  ESSENTIALS   THAT   FIX   LIABILITY.  425 

But  where  the  goods  were  loaded  in  a  car  standing  on  a  side- 
track, by  the  owner,  who  was  desirous  of  shipping  them,  it  was 
held  not  to  constitute  a  delivery  to  the  railroad  company,  where 
the  station  agent,  being  notified  thereof,  declined  to  ship  the 
goods,  there  being  no  custom  or  regulation  of  the  railroad  com- 
pany making  such  loading  into  the  company's  car  a  delivery. ^^ 

§  433.  Actual  notice  of  deposit  of  goods. —  As  a  general  rule, 
however,  if  there  is  no  custom  or  usage  which  might  be  said  to 
govern  the  delivery  of  the  property  for  shipment  as  mentioned 
in  the  previous  section,  notice  of  the  delivery  of  the  property, 
if  delivered  at  some  other  place  than  that  fixed  and  required  by 
the  rules  and  regulations  of  the  company,  must  be  given  to  the 
carrier  or  his  agent,  and  his  acquiescence  in  such  delivery  re- 
ceived, otherwise  a  deposit  of  the  goods  at  an  unusual  place,  as 
on  the  platform,  or  loading  them  in  a  railroad  car,  or  depositing 
them  upon  the  wharf  instead  of  the  place  designated  by  the  com- 
pany, would  not  be  held  to  be  a  delivery.^^ 

§  434.  Time  of  delivery. — The  time  of  delivering  the  goods 
must  be  at  a  reasonable  hour,  and  generally  in  conformity  with 
the  requirements  of  the  rules  and  regulations  of  the  carrier,  if 
any.  Good  sense  and  business  methods  dictate  that  the  time  the 
carrier  should  be  compelled  to  receive  freight  for  shipment 
would  depend  very  largely  upon  the  time  of  the  running  of  its 
trains,  the  departure  of  its  boats  or  other  vehicles  for  transport- 
ing the  goods.  Generally,  however,  it  may  be  said  that  the 
freight  should  be  delivered  within  customary  business  hours, 
and  if  for  transportation  upon  any  particular  boat  or  train,  at 
a  reasonable  time  before  its  departure.  All  this  is  subject,  how- 
ever, to  the  reasonable  rules  and  regulations  of  the  carrier,  mod- 

inson  on  Carriers.  And  it  has  been  Keith,  8  Ind.  App.  57,  5  N.  E.  296; 

held  that  an  agreement  to  receive  Capehart  v.  Granite  Mfg.  Co.,  97 

goods  for  transportation  deposited  Ala.    353;    Union   Pac.    R.    Co.    v. 

at  a  particular  place,  namely,  upon  Hepner,  3  Colo.  App.  313,  41  Iowa, 

the  carrier's  private  wharf ,  would  410;  Galena,  etc.  R.  Co.  v.  Rae,  18 

be  implied  where  it  has  become  a  111.  488,  68  Am.  Dec.  574. 
constant  practice  and  usage  to  re-  12  Packard    v.    Getman,    6    Cow. 

ceive  goods  for  transportation  by  (N.   Y.)    758,  16  Am.   Dec.   475,  4 

the    carrier    and    take    charge    of  Wend.    615;    Grosvenor    v.    N.    Y. 

the  property  so  deposited  without  Cent.  R.  Co.,  39  N.  Y.  34;  Salinger 

any  express  notice  of  such  deposit.  v.    Simmons,    57    Barb.    513;    111. 

Marriam  v.  Hartford,  etc.  R.  Co.,  Cent.  R.  Co.  v.  Smyser,  38  111.  354, 

20  Conn.  345.  87  Am.  Dec.  301. 
"Evansville  &  T.  H.  R.  Co.  v. 


426  CARRIERS.  [§  435.. 

ified,  as  we  have  seen,  by  custom  and  usage  that  have  become 
well  known  and  understood,  and  seem  to  have  been  accepted  by 
the  carrier.  Where  the  shipper  delivered  the  freight  to  be  car- 
ried during  a  storm  which  afterwards  resulted  in  its  injury,  it 
was  held  that  the  shipper  should  not  be  held  guilty  of  contribu- 
tory negligence  if  the  carrier  consented  to  receive  the  goods. 
Whatever  objection  he  might  have  made  was  waived,  and  he  be- 
came responsible  for  the  security  of  his  goods  from  the  time  of 
such  acceptance.^^ 

§  435.  By  whom  must  delivery  be  made  and  to  whom. — A 
good  delivery  of  the  goods  for  shipment  may  be  made  to  the 
common  carrier  by  the  owner,  a  duly  authorized  agent,  or  any 
person  to  whom  he  has  delivered  the  possession  and  control  of 
the  property  with  all  the  indicia  of  ownership.  Apparent  au- 
thority, as  well  as  actual  authority,  may  also  be  relied  upon  by 
the  carrier  in  such  cases.  That  principle  of  agency,  too,  that 
the  agent  is  authorized  to  exercise  all  the  powers  necessary  to 
effect  the  purpose  of  the  agency,  may  be  successfully  invoked 
by  the  carrier.  And  so  it  has  been  held  that  "authority  to  de- 
liver goods  to  a  common  carrier  for  transportation  includes  all 
the  necessary  and  usual  means  of  carrying  it  into  effect.  It  can 
only  be  executed  by  obtaining  the  consent  of  the  carrier  to  re- 
ceive them,  and  the  agent  is  therefore  authorized  to  stipulate 
for  the  terms  of  transportation."  Where  a  cartman,  employed 
by  persons  from  whom  a  valuable  mirror  had  been  purchased, 
and  who  agreed  to  forward  it  by  the  defendant  carrier,  signed  a 
contract  for  the  owner  as  agent,  limiting  the  liability  of  the  car- 
rier in  case  the  mirror  was  broken,  the  persons  from  whom  the 
purchase  was  made  consenting  thereto,  it  was  held  that  the  de- 
fendant, by  reason  of  the  contract,  was  not  liable,  and  that  the 
authority  to  sign  was  incident  to  the  authority  to  ship.^*  In 
Hayes  v.  Camphell,^^  it  was  held  that  where  there  are  facts 
brought  home  to  the  carrier  showing  that  the  person  shipping 
the  property  is  a  mere  agent  and  not  the  owner,  the  carrier  is 
put  upon  inquiry  as  to  the  authority  of  and  the  extent  of  the 
powers  of  such  agent.    Where  wool  was  delivered  at  the  station 

13  New  Brunswick  Steamboat  &  R.  Co.,  98  Mass.  239;  York  Co.  v. 
Trans.  Co.  v.  Tiers,  24  N.  J.  L.  697,  Cent.  R.  R.  Co.,  3  Wall.  (U.  S.) 
64  Am.  Dec.  394.  107,  113. 

14  Nelson  v.  H.  R.  R.  Co.,  48  N.  is  63  Cal.  143. 
Y.  498;  Squire  et  al.  v.  N.  Y.  Cent.' 


§    436.]  ESSENTIALS    THAT   FIX   LIABILITY.  427 

of  a  common  carrier  in  sacks  marked  with  the  name  and  address 
of  the  owner,  whose  place  of  business  was  in  Boston,  and  with 
the  initial  of  the  agent  who  had  purchased  it,  with  the  weights 
and  numbers  upon  all  the  sacks,  and  it  appeared  that  previous 
shipments  had  been  made  by  the  same  agent  at  the  same  place 
to  the  same  parties  during  the  same  season,  and  that  when  said 
agent  delivered  this  wool  he  piled  it  into  one  part  of  the  build- 
ing and  pointed  it  out  to  the  carrier's  agent,  saying  that  that 
pile  of  wool  is  for  Boston,  it  was  held  that  this  constituted  a 
good  and  sufficient  delivery.^* 

§  436.  To  whom  delivery  must  be  made. — It  is  a  gen- 
eral rule  that  to  render  a  common  carrier  liable  for  goods  to  be 
carried  by  him,  the  fact  that  the  goods  were  actually  delivered 
to  him,  or  to  some  person  authorized  to  act  in  his  behalf,  must  be 
established.  This  is  important,  because  his  liability  attaches 
only  from  the  time  he  accepts  the  goods  to  be  carried,  or  is 
legally  bound  to  accept  them.  To  complete  the  delivery  of  goods 
to  the  carrier  it  is  essential  that  the  property  be  placed  in  a  po- 
sition to  be  cared  for,  and  under  the  control  of  the  carrier  or 
his  agent  with  his  knowledge  and  consent.^'^  It  is  a  fact  com- 
monly known  and  understood  that  carriers  generally  act  through 
their  agents,  and  the  question  often  arises,  who  are  the  duly 
authorized  agents  of  the  carrier?  To  determine  this  question 
we  are  to  apply  the  ordinary  rules  of  the  law  of  agency.  The 
shipper  is  not  bound  to  make  a  full  investigation  in  order  to  de- 
termine whether  one  is  an  agent  of  the  carrier  company.  If  the 
person  has  apparent  authority,  if  he  is  in  the  place  of  the  car- 
rier, acting  for  him  in  the  receiving  of  freight  and  sending  it 
forward,  so  engaged  that  to  the  ordinarily  prudent  business  man 
it  would  appear  that  he  had  authority  to  act  and  was  acting  for 
and  with  the  knowledge  of  the  company,  it  is  sufficient.  If  the 
person  is  accustomed  to  act  for  the  company,  and  has  been  so 
doing  for  a  considerable  time,  so  long  and  so  often  that  it  could 
be  reasonably  inferred  that  the  carrier  must  know  that  he  is  act- 
ing, he  will  be  held  to  have  authority  to  act.  Where  a  package 
for  an  express  company  was  delivered  to  a  person  in  charge  at 
the  railroad  depot  who  had  been  accustomed  to  receive  such 
packages  for  the  company,  it  was  held,  in  an  action  against  the 

16  Nichols  V.   Smith,   115   Mass.  i7  Grosvenor  v.  N.  Y.   Cent.   R. 

332.  Co.,  39  N.  Y.  34. 


428 


CARRIERS. 


[§  437. 


company  for  failure  to  deliver  the  package,  that  the  delivery  to 
the  company  was  sufficient.^^  And  where  packages  were  deliv- 
ered to  an  expressman  in  charge  of  an  express  wagon  bearing 
the  name  of  the  express  company,  the  wagon  being  one  that 
called  at  plaintiff's  place  every  night  for  goods  to  be  delivered, 
the  expressman  signing  a  receipt  on  a  form  used  by  the  com- 
pany, it  was  held  that  the  expressman  had  authority  to  act  for 
the  company  in  receiving  the  goods,  and  the  delivery  was  suffi- 
cient.^^ 

§  437.  Faxjts  relied  upon  to  show  apparent  authority 

must  be  clear. — While  apparent  authority  is  usually  sufficient, 
the  facts  upon  which  it  is  claimed  must  be  clear  and  conclusive 
and  of  such  a  nature  as  to  convince  the  ordinarily  prudent  busi- 
ness man  that  the  authority  is  really  possessed  by  the  person  act- 
ing as  the  agent  of  the  carrier.  If  the  facts  relied  upon  are  not 
sufficient  to  support  such  a  belief,  then  delivery  to  one  not  hav- 
ing authority  would  not  be  sufficient.^"  The  delivery  must  be  to 
the  carrier  or  to  an  agent  having  actual  or  apparent  authority  to 
act,  and  not  to  a  mere  servant,  or  a  deck  hand  upon  a  steamboat, 


18  Express  Co.  v.  Black,  8  Tex. 
Civ.  App.  363. 

19  Lewis  V.  Vanhorn,  53  N.  Y.  S. 
446,  24  Misc.  Rep.  765.  And  in 
Goodrich  v.  Tliompson,  44  N.  Y. 
324,  it  was  held:  "If  an  agent  (a 
clerk),  authorized  by  the  general 
mode  in  which  the  business  of  his 
principals  (forwarders)  is  con- 
ducted, to  make  a  general  con- 
tract in  the  ordinary  course  of  the 
business,  assumes  to  make  a  spe- 
cial contract  with  a  third  person, 
who  has  no  notice  of  any  limita- 
tion of  the  authority  of  such  agent, 
the  principals,  as  between  them- 
selves and  such  third  person,  are 
bound  by  the  contract  so  made." 

20Abram  v.  Piatt,  52  N.  Y.  S. 
153,  23  Misc.  637.  It  appeared 
that  "the  plaintiff,  a  regular  cus- 
tomer of  the  defendant  express 
company,  exhibited  the  usual  card 
indicative  of  his  wish  to  ship 
goods,  and  in  apparent  response 


thereto  a  man  wearing  a  badge 
with  the  name  of  the  defendant 
company  entered  plaintiff's  store, 
receipted  for  the  goods  and  took 
them  away.  The  receipt  thus 
signed  was  in  a  book  of  blanks 
which  the  company  had  furnished 
to  plaintiff.  At  the  time  of  this 
delivery  a  wagon  was  seen  across 
the  street  on  which  the  name  of 
the  company  appeared,  but  the 
man  was  not  seen  to  come  from  it 
or  return  to  it,  and  it  was  not 
shown  to  have  belonged  to  the 
company.  The  man  was  not  the 
one  who  usually  called  for  goods, 
and  had  never  been  seen  before 
at  plaintiff's  store.  Held,  in  an 
action  to  recover  the  value  of  the 
goods,  which  were  never  deliv- 
ered, that  the  evidence  failed  to 
show  that  the  man  in  question 
was  defendant's  agent,  and  that 
the  complaint  should  have  been 
dismissed." 


§    439.]  ESSENTIALS    THAT   FIX   LIABILITY.  429 

or  a  brakeman  upon  a  railroad  train,  or  a  switchman  at  the  sta- 
tion, for  these  persons  have  no  authority  to  receive  goods  for 
shipment.^^  Where  one  delivered  a  coat  to  a  stage  driver  to  be 
carried  and  delivered  to  another  place  and  asked  that  it  be  put 
in  the  waybill,  but  the  driver  objected,  that  he  had  no  authority 
to  do  so,  but  would  carry  it  to  the  next  station  and  have  the 
agent  of  the  company  put  it  in  the  bill,  it  was  held  that  this  was 
not  a  sufficient  delivery  to  the  carrier,  and  that  he  could  not  be 
held  liable  for  the  loss  of  the  coat.^- 

§  438.  Agents  authorized  to  receive. — It  may  be  said  that  the 
agents  that  are  ordinarily  authorized  to  receive  freight  for  the 
common  carrier  for  transportation  are  officials  at  railroad  sta- 
tions; such  as  station  agents,  receiving  clerks  at  the  freight- 
room,  draymen  of  railroad  companies,  express  companies  or 
steamboat  companies  who  are  employed  to  solicit  or  receive 
freight  at  the  business  houses  or  other  places  about  the  city  or 
town  where  they  do  business;  agents  of  steamboat  companies, 
or  shipping  clerks  at  their  offices  and  freight  rooms,  captains  or 
mates  of  vessels  where  the  custom  of  the  company  has  been  to 
allow  them  to  receive  shipments,  baggage-masters  of  connecting 
carriers,  and  officers  and  agents  of  such  carriers,  and  servants 
of  the  different  carrier  companies  employed  by  such  companies 
to  solicit  and  receive  freight  for  transportation  for  their  re- 
spective carriers.  ^^ 

§  439.  Constructive  delivery. — Thus  far  we  have  treated  of 
actual  delivery.  Delivery  may  be  actual  or  constructive,  but 
constructive  delivery  of  goods  so  as  to  bind  the  carrier  and  sub- 
ject him  to  liability  for  their  loss  or  injury  will  only  be  recog- 
nized as  sufficient  in  cases  where,  by  the  constant  and  usual 
practice  and  usage  of  the  carrier,  such  kind  of  delivery  has  been 
permitted.  If  it  has  been  the  usual  practice  of  the  carrier — 
for  example,  to  receive  goods  delivered  for  shipment  that  are 

21  Young  V.  Can.  Pac.  R.  Co.,  1  to  be  a  deck  hand.  It  was  held 
Manitoba  L.  205;  Butler  v.  Hudson  that  the  servants  of  defendant  had 
River  R.  Co.,  3  E.  D.  Smith  (N.  no  general  authority  to  receive 
Va.  424.  goods  for  transportation.     Porter 

22  Blanchard  v.   Isaacs,   3  Barb.  v   Chicago  R.  Co.,  41  Iowa,  358. 
(N.  Y.)  388;  Fisher  v.  Geddes,  15  23  witbeck  v.  Schuyler,  44  Barb. 
La.   Ann.    14.     In   Trowbridge   v.  (N.  Y.)  469;  State  v.  Frew,  24  W. 
Chapin,  23  Conn.  595,  a  trunk  was  Va.   424. 

delivered  to  one  who  was  shown 


430 


CARRIERS. 


[§  439. 


left  by  the  shipper  upon  the  platform  of  their  depot,  or  the  dock 
from  which  their  ships  are  loaded,  from  all  or  from  certain  of 
their  patrons,  then  such  a  delivery  would  be  good  and  sufficient 
to  bind  the  carrier.  But  if  there  is  no  such  custom  or  usage  or 
continued  practice  from  which  such  acquiescence  of  the  carrier 
in  like  cases  can  reasonably  be  inferred,  then  such  delivery  will 
not  be  sufficient.^*  Where  a  warehouse  receipt  for  the  goods  was 
delivered  to  the  carrier,  and  the  goods  to  be  transported  by  him 
were,  before  being  removed  from  the  warehouse,  destroyed  by 
fire,  it  was  held  not  to  be  such  a  delivery  as  would  create  the 
extraordinary  liability  which  usually  attaches  to  the  common 


carrier. 


24  Witzler  v.  Collins,  70  Me.  290- 
299,  35  Am.  Rep.  327,  held  there 
can  be  no  constructive  delivery 
of  goods  so  as  to  bind  the  owner 
for  their  carriage  except  at  such 
places  where  by  constant  practice 
and  usage  they  have  received 
property  left  for  transportation. 
That  can  only  be  when  by  the 
constant  practice  and  usage  of  the 
carrier  he  receives  property  left 
for  transportation  at  a  particular 
place.  Citing  1  Chitty  on  Car.  686, 
note. 

25  Stewart,  Ralph  &  Co.  v.  Gracy 
&  Bro.,  93  Tenn.  314-320.  The 
court  say.  "A  contract  with  a  com- 
mon carrier  for  the  transportation 
of  property  being  one  of  bailment, 
it  is  necessary,  in  order  to  charge 
him  for  its  loss,  that  it  be  deliv- 
ered to  and  accepted  by  him  for 
that  purpose.  But  such  accept- 
ance may  be  actual  or  construct- 
ive. If,  for  instance,  the  property 
be  deposited  at  a  designated  sta- 
tion, in  accordance  with  a  con- 
ventional arrangement  between 
the  parties  in  respect  to  the  mode 
of  delivery,  or  if  it  be  deposited 
with  a  third  person  who  is  au- 
thorized by  the  carrier  to  execute 
a  bill  of  lading  in  the  name  of 
the    carrier,    then    such   mode   of 


delivery  Is  as  complete  as  if  the 
property  had  been  actually  de- 
posited with  the  carrier."  To  this 
effect  was  Deming  v.  Merchants', 
etc.  Co.,  6  Pick.  306.  See  also 
Hutchinson  on  Carriers,  §§  1,  79, 
82;  Watson  v.  Railroad  Co.,  9 
Heisk.  225."  Missouri  Pac.  R.  Co. 
V.  McFadden,  154  U.  S.  160:  "The 
elementary  rule  is  that  the  lia- 
bility of  the  common  carrier  de- 
pends upon  the  delivery  to  him 
of  the  goods  which  he  is  to  carry. 
This  rule  is  thus  stated  in  the 
text-books:  'The  liability  of  a  car- 
rier begins  when  the  goods  are 
delivered  to  him  or  his  proper 
servant  authorized  to  receive  them 
for  carriage.'  Redfield  on  Carriers, 
80.  'The  duties  and  the  obliga- 
tions of  the  common  carrier  with 
respect  to  the  goods  commence 
with  their  delivery  to  him,  and 
this  delivery  must  be  complete, 
so  as  to  put  upon  him  the  exclu- 
sive duty  of  seeing  to  their  safety. 
The  law  will  not  divide  the  duty 
or  the  obligation  between  the  car- 
rier and  the  owner  of  the  goods. 
It  must  rest  entirely  upon  the  one 
or  the  other;  and  until  it  has  be- 
come imposed  upon  the  carrier  by 
a  delivery  and  acceptance  he  can- 
not be  held  responsible  for  them." 


§  440.] 


ESSENTIALS   THAT   FIX   LIABILITY. 


431 


§  440.  Rules  permitting  constructive  delivery  must  be  ap- 
plied with  great  caution. — The  aim  and  object  of  the  law  is  to 
measure  out  to  both  the  public  and  the  carrier  equal  and  exact 
justice.  The  public  are  to  be  served  and  furnished  ample  ac- 
commodations, at  least  to  the  extent  of  the  ability  of  the  carrier ; 
on  the  other  hand,  the  carrier  should  not  be  imposed  upon  by- 
putting  upon  him  unreasonable  requirements,  or  subjecting  him 
to  liability  by  slack  and  unbusiness-like  ways  on  the  part  of  the 
shipper.  As  we  have  seen,  constructive  delivery  depends  very 
materially,  if  not  entirely,  upon  the  usage,  custom  and  usual 
course  of  business  of  the  shipper  and  the  carrier.  Has  it  been  the 
long-continued,  accepted  course  of  business  in  the  particular 
case  to  so  deliver  the  freight,  and  has  it  been  accepted  by  the 
carrier?  Has  the  particular  servant  been  allowed  to  so  receive 
the  freight  for  the  carrier?  Has  freight,  by  the  long,  uninter- 
rupted usa^e  of  the  carrier  with  the  particular  shipper  or  with 
the  public,  been  received  and  shipped  when  left  at  the  particular 
place,  by  the  roadside,  or  on  the  platform  or  dock,  or  when  de- 
livered to  the  captain  or  mate?     If  these  questions  can  be  af- 


Hutchinson  on  Carriers,  82.  This 
doctrine  is  sanctioned  by  a  unani- 
mous course  of  English  and  Amer- 
ican decisions.  Schooner  Free- 
xnan  v.  Buckingham,  18  How.  182; 
The  Lady  Franklin,  8  Wall.  325; 
The  Delaware,  14  Wall.  579;  Pol- 
lard V.  Vinton,  105  U.  S.  7;  Iron 
Mountain  Ry.  Co.  v.  Knight,  122 
U.  S.  79;  Friedlander  v.  Texas  & 
Pac.  R.  Co.,  130  U.  S.  423;  St. 
liouis.  Iron  Moimtain,  etc.  R.  Co. 
V.  Commercial  Union  Ins.  Co.,  139 
TJ.  S.  233;  Barron  v.  Eldridge,  100 
Mass.  455;  Moses  v.  Boston  & 
Maine  R.  Co.,  4  Fost.  (24  N.  H.) 
71;  Brind  v.  Dale,  8  Car.  &  P.  207; 
Seway  v.  Holloway,  1  Ld.  Raym. 
46;  Buckman  v.  Levi,  3  Camp.  414; 
Leigh  V.  Smith,  1  Car.  &  P.  638; 
Grant  v.  Norway,  10  C.  B.  665; 
Hubbersty  v.  Ward,  8  Exch.  330. 
Indeed,  the  citations  might  be 
multiplied  indefinitely.  Whilst  the 
authorities   may   differ   upon   the 


point  of  what  constitutes  deliv- 
ery to  a  carrier,  the  rule  is  no- 
where questioned  that  when  de- 
livery has  not  been  made  to  the 
carrier,  but,  on  the  contrary,  the 
evidence  shows  that  the  goods  re- 
mained in  the  possession  of  the 
shipper  or  his  agent  after  the 
signing  and  the  passing  of  the  bill 
of  lading,  the  carrier  is  not  liable 
as  carrier  imder  the  bill.  Of 
course,  then,  the  carrier's  liability 
as  such  will  not  attach  on  issuing 
the  bill  in  a  case  where  not  only 
is  there  a  failure  to  deliver,  but 
there  is  also  an  understanding  be- 
tween the  parties  that  delivery 
shall  not  be  made  till  a  future  day, 
and  that  the  goods  until  then  shall 
remain  in  the  custody  of  the  ship- 
per." In  Green  v.  Milwaukee  R. 
Co.,  38  Iowa,  100,  the  court  say: 
"It  is  not  claimed  that  defendant 
would  be  liable  without  a  delivery, 
either  actual  or  constructive,  of 


432 


CAERIERS. 


[§  440. 


finnatively  answered  according  to  the  proofs,  then,  as  we  have 
seen,  the  delivery  is  sufficient.  But  great  caution  should  be  ob- 
served in  determining  these  questions.^® 


the  property  to  its  agent  or  serv- 
ant That  a  delivery  may  be  made 
at  the  proper  place  of  receiving 
such  baggage,  under  the  express 
assent  or  authority  of  the  carrier, 
without  notice  to  its  employees, 
will  not,  we  presume,  be  disputed. 
It  is  equally  clear  upon  principle 
that  this  assent  may  be  presumed 
from    the   course    of   business   or 


custom  of  the  carrier.  Upon  evi- 
dence of  this  character,  contracts 
based  upon  business  transactions 
are  constantly  established.  The 
citation  of  authority  is  not  re- 
quired to  support  this  position. 
See  Marriam  v.  Hartford  &  N.  H. 
R.  Co.,  20  Conn.  354." 

26  Hutchinson  on  Carriers,  §  93. 


CHAPTER  IV. 


CARRIERS  OF  GOODS— FIXING  THE  LIABILITY  OF  THE 
CARRIER. 


§  441.  The  object  of  the  chapter. 

442.  What  must  the  carrier  re- 

ceive and  carry. 

443.  Reasonable      regula- 
tions. 

444.  Other    legal    excuses 

for    refusing    to    receive 
goods. 

445.  Carrier  may  fix  time 

and  place  for  receiving. 

446.  That  the  carrier  has  no  fa- 

cilities  for   carrying   the 
goods. 

447.  Extraordinary     occa- 
sions— Press  of  business. 

448.  Carrier  not  permitted  to  ar- 

bitrarily refuse  to  receive 
and  ship. 


§  449 


Equitable  proceedings  to 
enforce  the  receiving  and 
shipping  of  freight. 

Acceptance  by  the  carrier. 

When  delivery  and  accept- 
ance completed. 

A  bill  of  lading  or  receipt 
not  a  requisite  to  bind 
carrier. 

453.  Action  for  refusal  to  accept 

and  transport  goods. 

454.  Tender   of    the    goods   and 

payment  of  freight. 

455.  Who  may  sue. 

456.  The  liability. 

457.  Duty  to  provide  proper  ve- 

hicles. 


450. 
451. 

452. 


§  441.  The  object  of  the  chapter. — The  goods  being  delivered 
or  offered  by  the  shipper  for  carriage  to  the  carrier  suggests  the 
questions  as  to  what  must  he  receive,  and  in  ease  of  refusal  how 
can  the  duty  be  enforced.  The  discussion  of  these  questions  is 
the  object  of  this  chapter. 

§  442.  What  must  the  carrier  receive  and  carry. — The  gen- 
eral rule  is  that  it  is  the  duty  of  the  common  carrier  to  receive  the 
goods  and  property  of  all  who  offer  them  for  carriage  and  comply 
with  the  usual  requirements.  This  general  rule,  however,  is  sub- 
ject to  many  limitations,  some  of  which  have  already  been  men- 
tioned, notably  one,  that  the  goods  and  property  must  be  of  the 
kind  that  is  within  the  line  of  business  in  which  the  carrier  is 
engaged,  or  in  the  line  of  goods  or  property  he  holds  himself  out 
to  carry,  or  which,  from  all  the  circumstances,  the  carrier  is  rea- 
sonably expected  by  the  public  to  carry.  He  is  a  quasi-pwhlic 
servant,  subject  to  the  demands  of  the  public,  and  the  law  and 
public  policy  will  call  upon  him  to  at  all  times  respond  to  such 
28 


434  CARRIERS.  [§   444. 

demands  if  within  the  scope  and  line  of  his  business  as  a  car- 
rier. He  is  thus  subjected  to  the  demands  of  the  public,  and  is 
bound  to  carry,  as  a  general  rule,  all  the  freight  or  property  that 
is  tendered  to  him  for  carriage  and  that  is  within  the  line  of  his 
particular  business;  there  are  however  exceptions  and  limitations 
to  these  rules  which  are  suggested  by  public  policy  as  well  as 
by  the  common  judgment  of  men,  and  to  meet  some  of  these  ex- 
ceptions and  limitations  the  carrier  is  permitted  to  make  rea- 
sonable regulations  as  to  the  carriage  of  goods  presented  to  him 
for  transportation. 

§  443.  Reasonable  regulations. — Reasonable  rules  and 

regulations  may  be  made  applicable  to  all  departments  of  the 
business  of  the  common  carrier.  For  example,  it  has  been  held 
that  he  may  make  regulations  as  to  the  manner  in  which  the 
goods  presented  for  shipment  shall  be  packed  or  prepared  for 
shipment,  and  this  rule  seems  entirely  reasonable,^  for  it  is  not 
difficult  to  understand  that  it  would  be  necessary  and  only  just 
to  the  carrier  that  certain  kinds  of  goods  should  be  properly 
prepared  for  shipment.  For  example,  the  carrier  may  require 
that  crockery  or  hardware  shall  be  crated;  that  hay  shall  not  be 
shipped  loose  but  shall  be  baled;  that  furniture  or  machinery 
shall  be  put  in  racks;  that  money  shall  be  put  in  sealed  pack- 
ages; that  all  goods  and  property  shipped  shall  be  properly 
marked  and  directed  to  the  consignee  and  to  the  place  of  destina- 
tion, and  that  animals  shall  not  be  transported  except  there  be 
an  attendant  to  care  for  them  en  route.  And  so  it  follows  that 
the  carrier  may  refuse  to  receive  such  like  property  for  trans- 
portation unless  the  shipper  has  complied  with  these  reasonable 
regulations.^ 

§  444.  Other  legal  excuses  for  refusing  to  receive  goods. 

And  so  a  carrier  may  refuse  to  receive  goods  for  shipment  where 
the  packages  lead  him  to  suspicion  that  they  may  contain  dan- 

1  Hutchinson  on  Carriers,  §113;  shipper  having  had  no  reasonable 
Union  Ex.  Co.  v.  Graham,  26  Ohio  opportunity  to  make  a  safer  dis- 
St.  595.  position  of  the  goods."  And  in  the 

2  In  Seasongood  v.  Tenn.  &  O.  same  case  it  was  further  held  that 
Tr.  Co.,  54  S.  W.  193,  it  was  held  where  one  whom  a  steamboat 
"that  a  steamboat  carrier  was  lia-  carrier  had  permitted  to  act  as  its 
ble  for  the  loss  by  theft  of  goods  agent  in  receiving  freight  for  such 
temporarily  stored  in  its  ware-  a  length  of  time  as  to  justify  the 
house  upon  its  wrongful  refusal  to  belief  that  he  was  an  authorized 
receive    them    for    shipment,    the  agent    wrongfully    refused    to    re- 


§  444] 


FIXING  LIABILITY. 


435 


gerous  or  explosive  articles  which  would  expose  the  carrier  or 
his  servants  to  danger,  if  the  shipper  refuse  to  allow  the  carrier 
to  make  an  examination  and  satisfy  himself  that  the  goods  are 
fit  for  shipment.  Indeed,  it  is  held  to  be  the  duty  of  the  carrier 
under  such  circumstances  to  become  satisfied  that  the  goods  are 
not  of  a  dangerous  kind,  unfit  and  dangerous  to  be  handled  by 
the  servants  of  the  carrier.^  So  if  the  goods  are  infected  with 
contagious  diseases,  or  if  to  receive  or  transport  them  would  oc- 
casion a  riot,  or  where  the  property  is  such  that  the  law  prohib- 
its its  being  carried,^  or  w^here  the  goods  are  perishable  and  the 
carrier  has  no  means  of  immediate  trans.portation,  in  such  cases 
he  may  refuse  to  carry  the  property,  but  should  notify  the  ship- 
per that  he  cannot  carry  it,  that  he  may  ship  it  by  some  other 
carrier,  or  dispose  of  it  as  he  may  see  fit.^  And  so  it  has  been 
held  that  where  the  line  of  road  was  under  military  control,  the 


ceive  freight  offered,  the  carrier 
cannot  escape  liability  on  the 
ground  that  he  had  no  authority 
to  receive  freight  for  shipment." 
3  Nitro-glycerine  Case,  15  Wall. 
(U.  S.)  524;  Boston,  etc.  R.  Co.  v. 
Shanly,  107  Mass.  568.  In  the 
Nitro-glycerine  Case,  above  cited, 
the  court  say:  "The  case  cited 
from  the  common  pleas  recognizes 
the  right  of  the  carrier  to  refuse 
to  receive  packages  offered  with- 
out being  made  acquainted  with 
their  contents  when  there  is  good 
ground  for  believing  that  they 
contain  anything  of  a  dangerous 
character.  It  is  only  when  such 
grounds  exist  arising  from  the  ap- 
pearance of  the  package  or  other 
circumstances  tending  to  excite 
his  suspicion  that  the  carrier  is 
authorized,  in  the  absence  of  any 
special  legislation  upon  the  sub- 
ject, to  require  a  knowledge  of  the 
contents  of  the  packages  offered 
as  a  condition  of  receiving  them 
for  carriage.  Crouch  v.  London 
&  Northwestern  R.  Co.,  9  Exch. 
556;  Brass  v.  Braitland,  6  El.  & 
Bl.  485." 


4  Where  by  statute  the  impor- 
tation of  goods  of  a  certain  char- 
acter is  prohibited,  as,  for  exam- 
ple, intoxicating  liquors,  the  car- 
rier may  refuse  to  receive  them, 
and  it  has  been  held  that  while 
the  carrier  was  made  liable  by 
statute  for  carrying  such  articles, 
it  would  be  no  answer  for  him  to 
allege  that  he  had  no  right  to  re- 
fuse to  carry  goods  tendered. 
State  V.  Goss,  59  Vt.  266,  59  Am. 
Rep.  706.  In  Milwaukee  Malt  Ex- 
tract Co.  V.  Chicago,  etc.  R.  Co., 
73  Iowa,  98,  it  was  held  that  where 
the  plaintiff  had  tendered  to  de- 
fendant for  shipment  a  known  in- 
toxicating beverage  which  was 
labeled  beer,  and  which  the  com- 
pany refused,  because  of  the  laws 
of  Iowa  which  prohibited  the  im- 
portation of  intoxicating  liquors, 
it  was  held  that  the  action  could 
not  be  maintained  for  such  re- 
fusal, although  the  beverage  may 
not  have  been  intoxicating,  the 
shipment  having  been  marked 
beer. 

5  Tierney  v.  New  York  Cent.  R. 
Co.,  76  N.  Y.  305. 


436  CARRIERS'  [§   446. 

carrier  would  be  excused  from  receiving  freight  to  be  transported 
over  it,  as  he  does  not  control  the  road ;  ^  or  whenever  for  any 
reason  the  goods  are  unfit  for  transportation,  or  where  the  ship- 
per refused  to  pay  the  compensation  for  transportation.  But 
should  the  carrier  accept  the  goods  for  transportation  in  cases 
where  he  might  properly  have  refused  to  receive  them,  he  will 
be  held  to  have  waived  his  reasonable  and  legal  excuse  for  not 
receiving  them,  and  thus  become  liable  for  any  loss  of  or  injury 
to  the  property,  the  same  as  in  case  of  other  goods;  in  other 
words,  he  will  be  held  to  have  waived  his  special  exemption  from 
liability. '^ 

§  445.  Carrier  may  fix  time  and  place  for  receiving. — 

When  the  goods  have  been  received  by  the  carrier  for  immediate 
transportation  the  extraordinary  liability  of  a  common  carrier 
is  at  once  fixed  upon;  there  is,  therefore,  good  reason  for  hold- 
ing that  the  carrier  should  fix  a  proper  time  and  place  for  the 
receiving  of  the  goods  and  for  releasing  him  from  any  liability 
in  case  the  goods  are  not  delivered.  It  is  therefore  considered 
to  be  a  reasonable  regulation  that  the  shipper  shall  offer  the 
goods  at  a  reasonable  time  and  place  fixed  by  the  carrier.^  And 
where  goods  are  not  so  offered,  and  such  reasonable  regulations 
not  complied  with,  the  common  carrier  is  not  liable  for  loss  of 
or  injury  to  the  goods. 

§  446.  That  the  carrier  has  no  facilities  for  carrying  the 
goods. — From  the  definition  of  a  common  carrier  it  w^ill  be  no- 
ticed that  this  limitation  is  recognized:  that  he  is  only  bound 
to  carry  goods  to  the  extent  of  his  ability.  While  this  is  true, 
there  is,  however,  a  very  important  duty  laid  upon  the  carrier 
by  way  of  requiring  him  to  equip  himself  for  the  business  he 
has  in  hand;  he  must  furnish  equipment  reasonably  commen- 
surate  with  the  well-understood  and  apparent  demands  upon  a 
carrier  operating  in  the  particular  locality  and  in  the  particu- 
lar line  of  goods  in  which  he  is  engaged.  The  railroad  operating 
a  line  of  road  through  a  populous  manufacturing  and  agricul- 
tural country  must  have  equipment  that  is  reasonably  and  prop- 

6  Illinois  Cent.  R.  Co.  v.  Cobb,  s  Cronkite  v.  Wells,  32  N.  Y. 
64  111.  128;  Illinois  Cent.  R.  Co.  v.  247;  Louisville  R.  Co.  v.  Flanni- 
Schwartz,  13  111.  App.  490.  gan,    113    Ind.    488;    Robinson    v. 

7  The  David  &  Caroline,  5  Baltimore  &  O.  Ry.  Co.,  129  Fed. 
Blatchf.    (U.  S.)    266;    Pickford  v.  753. 

Grand  Junction  R.   Co.,  12   M.  & 
W.  766;  Hutch,  on  Car.  §  117. 


§    447.]  FIXING  LIABILITY.  .  437 

erly  demanded  in  order  to  handle  the  shipments  of  freight  from 
such  a  country,  and  if  after  a  reasonable  time  has  elapsed  th& 
carrier  fails  to  supply  such  equipment,  and  because  of  this  a 
shipper  is  damaged,  there  can  be  no  question  that  the  carrier 
would  be  liable  in  an  action  for  such  damage ;  ^  and  it  has  been 
held  that  the  courts  may  compel,  by  mandamus,  the  carrier  to 
furnish  cars  and  facilities  for  the  shipment  of  freight  and  prop- 
erty tendered  for  shipment.  In  State  ex  rel.  etc.  v.  Texas,  etc. 
R.  Co.,^'^  it  was  held:  "While  it  is  true  that  the  court  has  no 
legal  right  to  manage  a  railroad,  or  direct  the  details  of  its  op- 
eration, or  make  contracts  for  the  railroad  company,  it  may  issue 
a  writ  of  mandamus  to  compel  it  to  perform  a  duty  clearly  de- 
fined under  the  law."  And  therefore  may  compel  it  by  man- 
damus to  furnish  cars  and  facilities  to  distribute  poles  along  a 
telegraph  line  which  is  to  run  parallel  and  adjacent  to  the  right 
of  way  of  the  railway  company. 

§  447.  Extraordinary  occasions — Press  of  business. — 

It  is  the  ordinary  requirements,  and  not  the  extraordinary,  that 
measure  the  legal  duty  of  the  carrier  to  receive  and  transport 
the  goods  of  all  who  call  upon  him  and  offer  their  goods  for 
transportation.  It  has  been  said  that  "the  amount  of  business 
ordinarily  done  by  a  railroad  is  the  only  proper  measure  of  its 
obligations  to  furnish  transportation.  If  by  reason  of  a  sudden 
and  unusual  demand  for  stock  or  produce  in  the  market,  or  from 
any  other  cause,  there  should  be  an  unexpected  influx  of  busi- 
ness to  the  railroad,  this  obligation  will  be  fully  met  by  shipping 
such  stock  or  produce  in  the  order  and  priority  of  time  in  which 
it  is  offered,  so  as  to  afford  a  reasonable  amount  of  accommoda- 
tion for  all.  While  it  may  be  difficult  to  lay  down  any  general 
rule  upon  this  subject,  sufficiently  accurate  in  its  terms,  to  cover 
all  business  that  may  possibly  occur,  still  we  think  it  can  be  ap- 
proximated by  saying  that  its  means  of  transportation  must  be 
so  distributed  at  the  various  stations  for  receiving  passengers 
and  freight  along  the  entire  line  of  its  road  as  to  afford  a  rea- 
sonable amount  of  accommodation  for  all."  ^^  And  so  a  railroad 

9  In  111.  Cent.  R.  Co.  v.  Cobb,  64  cago   R.   R.   Co.   v.   Thrapp,   5   111. 

111.  128,  it  was  held  that  the  com-  App.  502. 

pany  was  liable  for  a  delay  in  the  1052  La.  An.  1850,  28   So.   284; 

transportation  of  goods  in  conse-  Inman   v.    Railroad    Co.,    14    Tex. 

quence   of   lack  of  cars  or   other  Civ.  App.  39. 

facilities    unless    it    could    show  n  State  ex  rel.  v.   C,   B.   &  Q. 

good   cause   for   the    delay.     Chi-  R.  Co.,  71  Neb.  593,  99  N.  W.  309; 


438 


CARRIERS. 


[§  447, 


company  whicli  is  required  to  satisfactorily  meet  the  ordinary 
demands  upon  it,  to  receive  and  carry  the  freight  without  delay 
that  is  offered,  is  not  bound  to  receive  freight  which  it  cannot 
carry  because  of  a  temporary  press  and  demand  of  business  oc- 
casioned by  some  unusual  and  unlooked  for  occurrence  which 
the  carrier  could  not  prevent.     The  carrier,  under  such  circum- 


Strough  V.  N.  Y.  Cent.  etc.  R.  Co., 
87  N.  Y.  S.  30.  See  notes,  61  C. 
C.  A.  414;  Ballentine  v.  M.  N.  R. 
Co.,  40  Mo.  491-500.  In  Mich. 
Cent.  R.  Co.  v.  Burrows,  33  Mich. 
6,  it  appeared  that  the  plaintiff  on 
the  10th  of  November,  1871, 
shipped  four  carloads  of  apples 
consigned  to  agents  at  Minne- 
apolis; there  the  apples  were  con- 
signed to  the  next  carrier,  Novem- 
ber 17th,  and  arrived  in  Minne- 
apolis November  22d,  injured  by 
frost  while  in  transit.  The  action 
was  for  damages.  It  also  ap- 
peared that  the  great  Chicago  fire 
occurring  October,  1871,  destroyed 
the  tracks,  freight  houses,  depot 
and  other  facilities  of  the  plaintiff 
and  brought  about  a  great  demand 
for  the  shipment  of  goods  for  re- 
lief of  the  Chicago  fire  sufferers, 
and  that  these  shipments  were 
given  preference  to  any  other 
shipment;  that  on  account  of  this 
the  road  was  greatly  blocked  by 
an  accumulation  of  freight,  and 
for  this  reason  the  freight  in 
question  was  delayed.  The  court 
held:  "The  law  is  not  so  harsh 
and  unjust  as  to  punish  a  common 
carrier  who  makes  such  a  dis- 
crimination under  the  circum- 
stances, but  rather  commends  and 
approves  what  was  done.  While, 
therefore,  it  may  be  true,  as  a 
general  proposition,  that  it  was 
the  duty  of  the  company  to  for- 
ward freight  in  the  order  in  which 
it  was  received,  yet  in  this  case 
there  was  a  great  public  necessity 


to  which  all  general  rules  must 
bend,  making  it  the  imperative 
duty  of  the  company  to  give  relief 
goods  a  preference.  'The  law  it- 
self, and  the  administration  of  of 
it,'  said  Sir  W.  Scott  (2  Dods. 
323,  324)  'must  yield  to  that  to 
which  everything  must  bend — to 
necessity.  The  law,  in  its  most 
positive  and  peremptory  injunc- 
tions, is  understood  to  disclaim, 
as  it  does  in  its  general  aphorisms, 
all  intention  of  compelling  to  im- 
possibilities, and  the  administra- 
tion of  laws  must  adopt  that  gen- 
eral exception  in  the  considera- 
tion of  all  particular  cases.  In 
the  performance  of  that  duty  it 
has  three  points  to  which  its  at- 
tention must  be  directed.  In  the 
first  place  it  must  see  that  the 
nature  of  the  necessity  pleaded  be 
such  as  the  law  itself  would  re- 
spect, for  there  may  be  a  neces- 
sity which  it  would  not.  A  neces- 
sity created  by  a  man's  own  act, 
with  a  fair  previous  knowledge 
of  the  consequences  that  would 
follow,  and  under  circumstances 
which  he  had  then  a  power  of 
controlling,  is  of  that  nature. 
Secondly,  that  the  party  who  was 
so  placed  used  all  practical  en- 
deavors to  surmount  the  difficul- 
ties which  already  formed  that 
necessity,  and  which,  on  fair  trial, 
he  found  insurmountable.  I  do  not 
mean  all  the  endeavors  which  the 
wit  of  man,  as  it  exists  in  the 
acutest  understanding,  might  sug- 
gest, but  such  as  may  reasonably 


§    449.]  FIXING  LIABILITY.  439 

stances,  however,  should  inform  those  bringing  freight  for  car- 
riage of  his  condition ;  that  he  is  unable  to  carry  without  delay ; 
and  that  if  left  the  goods  will  have  to  wait  their  order  for  ship- 
ment and  until  other  freight  on  hand  for  carriage  is  shipped, 
thus  affording  the  shipper  an  option  to  leave  the  goods  upon 
condition  named  or  take  them  to  another  carrier. 

§  448.  Carrier  not  permitted  to  arbitrarily  refuse  to  receive 
and  ship. — When  the  shipper  has  done  all  that  by  the  law  and 
the  reasonable  regulations  of  the  company  he  is  bound  to  do  by 
way  of  delivering  the  goods  for  shipment,  the  carrier  cannot 
arbitrarily  refuse  to  accept  and  transport  them.  The  law  will 
assume  that  the  freight  is  in  his  possession  and  control,  and  he 
will  be  held  for  its  safe  custody  and  shipment;  and  in  such  case 
if  the  carrier  should  refuse,  and  an  action  at  law  for  damages 
would  not  be  an  adequate  remedy,  a  court  of  equity  could  no 
doubt  be  successfully  invoked  and  the  carrier  compelled  to  trans- 
port the  goods. 

§  449.  Equitable  proceedings  to  enforce  the  receiving  and 
shipping  of  freight. — A  rule  of  law  well  settled  in  the  law  of 
carriers  is  that  the  carrier  is  not  permitted  to  make  unjust  and 
discriminating  preferences  by  way  of  receiving  and  transport- 
ing freight;  the  general  rule  is  that  all  must  enjoy  the  same 
privileges  and  be  subject  to  the  same  proceedings.  This  applies 
to  the  matter  of  receiving  the  goods  for  shipment  as  well  as  to 
their  transportation,  and  when  the  company  makes  unjust  dis- 
criminations, and  the  shipper  has  no  adequate  remedy  at  law 
for  the  redress  of  such  wrongs,  a  court  of  equity  will  take  juris- 
diction and  by  its  decree  determine  the  equitable  rights  of  the 
parties.  This  question  was  before  the  court  in  the  case  of  Rog- 
ers Locomotive,  etc.  Works  v.  Erie  B.  Co}^  It  was  claimed  on 
the  part  of  the  complainant  that  there  was  a  combination  be- 
tween the  railroad  company  and  certain  of  its  directors  to  or- 

be  expected  from  a  fair  degree  of  is  also  said  to  be  a  general  rule, 

discretion  and  an  ordinary  knowl-  admitting  of  ample  practical  illus- 

edge   of  business.     Thirdly,    that  tratlon,  'that  where  the  law  cre- 

all   this   shall   appear  by  distinct  ates   a   duty  or   charge,    and   the 

and    unsuspected    testimony;    for  party  is  unable  to  perform  it  with- 

the    positive    injunctions    of    the  out  any  default  in  him,  and  has 

law,  if  proved  to  be  violated,  can  no  remedy  over,  there  the  law  will 

give  way  to  nothing  but  the  clear-  in  general  excuse  him.'  " 
est    proof    of    the    necessity    that  12  20  N.  J.  Ch.  379. 

compelled  the  violation.'     And  it 


440  CARRIERS.  [§    450. 

ganize  the  "Union  Locomotive  Express  Company,"  with  power 
to  forward  and  carry  locomotives  and  other  property,  and 
that  by  reason  of  this  the  shipping  rates  of  the  locomotives 
of  the  complainant  were  very  much  increased;  that  by  the  law 
granting  defendant  railroad  their  franchise,  they  were  bound  to 
receive  and  ship  the  locomotives  of  the  complainant  and  others 
at  a  reasonable  rate,  which  was  very  much  less  than  the  rate  of 
shipment  by  the  express  company,  claiming  that  there  was  an 
unlawful  combination  to  increase  the  rates.  The  court  said: 
"If  the  allegations  of  the  bill  are  true,  and  they  are  supported 
by  the  affidavits  annexed,  and  are  not  denied  by  answer  or  affi- 
davit, they  present  a  flagrant  case  of  refusal  to  perform  the  du- 
ties imposed  upon  it  by  law,  and  for  which  its  franchises  were 
granted,  by  a  corporation  public  in  its  object  and  almost  such 
in  its  character.  Railway  companies  have  delegated  to  them  as 
part  of  their  franchises  much  of  the  sovereign  power  of  the  state, 
in  consideration  of  their  discharging  part  of  what  are  the  proper 
duties  of  the  government,  that  is,  providing  the  means  of  com- 
merce and  intercourse  by  constructing  the  roads  which  are  the 
avenues  of  that  commerce.  .  .  .  The  injury  to  the  complain- 
ant, too,  is  of  that  nature,  that  while  there  may  be  a  remedy  at 
law,  as  by  recovery  of  damages  for  injury,  yet  is  such  that  can- 
not be  adequately  relieved  by  suits  for  damages.  It  is  continu- 
ally recurring,  and  will  require  continued  and  repeated  suits, 
and  continued  litigation,  and  the  expenses  of  each  suit  would 
make  the  recovery  of  the  excess  paid  an  inadequate  remedy." 

After  a  thorough  discussion  of  the  question  the  court  decreed 
that  an  injunction  be  issued  to  restrain  the  parties  from  in  any 
way  preventing  or  hindering  the  railroad  company  transporting 
complainant's  locomotives.^^ 

§  450.  Acceptance  by  the  carrier. — As  a  general  rule,  the  de- 
livery of  the  goods  must  be  followed  by  an  acceptance,  either 
actual  or  implied,  upon  the  part  of  the  carrier  or  his  duly  au- 
thorized agents.  But  it  may  be  said  that  before  this  can  occur, 
except  in  cases  where  constructive  delivery  may  be  made,  the 
attention  of  the  carrier  or  his  duly  authorized  agents  must  be 
called  to  the  delivery  of  the  property.  The  acceptance,  in  other 
words,  will  not  be  said  to  have  taken  place  unless  there  is  knowl- 

13  stock  Yard  Co.  v.  Louisville  R.  Co.,  67  Fed.  35,  31  U.  S.  App.  252. 


§    452.]  FIXING  LIABILITY.  441 

edge  upon  the  part  of  the  carrier  that  the  goods  are  delivered 
into  his  custody  and  control  for  transportation,  or  unless  at 
least  such  facts  and  circumstances  are  brought  to  the  attention 
of  the  carrier  as  would  justify  the  conclusion  that  he  ought  to 
have  known  that  the  goods  had  been  delivered.  An  acceptance 
by  the  carrier  will,  however,  waive  any  defects  in  the  manner  of 
the  delivery  of  the  goods.  Where  a  package  was  delivered  to 
the  agent  of  a  stage-coach  company  at  the  postoffice  where  the 
stage  was  standing,  and  not  at  the  office  of  the  company,  and 
was  by  the  agent,  when  received,  entered  on  the  way-bill,  the 
agent  having  previously  directed  the  person  who  had  the  care  of 
the  package  to  bring  it  to  the  postoffice,  and  the  package  having 
been  lost  before  reaching  its  destination,  it  was  held  the  owners 
of  the  coach  were  liable  to  the  owner  of  the  package  for  its 
value,  the  delivery  at  the  postoffice  having  been  with  the  assent 
of  their  agent.^* 

§  451.  When  delivery  and  acceptance  completed. — The  de- 
livery to  and  acceptance  of  the  goods  by  the  common  carrier  at 
once  fixes  the  liability  of  the  carrier ;  the  custody  and  control  of 
the  goods  are  transferred  to  him.  Just  when  this  change  takes 
place  is  sometimes  difficult  to  prove,  but  it  may  be  generally  said 
that  when  the  shipper  has  done  all  that  he  can  do  to  effect  the 
shipment  of  the  goods,  and  has  released  his  possession  and  con- 
trol by  actual  delivery  or  such  constructive  delivery  as  is  legal 
and  sufficient,  then  the  delivery  and  acceptance  is  complete  and 
the  carrier's  liability  at  once  attaches. 

§  452.  A  bill  of  lading  or  receipt  not  a  requisite  to  bind  car- 
rier.— A  bill  of  lading  or  receipt  from  the  carrier  to  the  shipper, 
although  it  is  usually  given,  and  the  course  of  business  would 
hardly  seem  satisfied  until  such  a  bill  or  receipt  had  been  deliv- 
ered, is  however,  not  a  requisite  to  a  full  and  complete  delivery. 
It  may  be  said  that  it  is  but  the  evidence  of  such  a  delivery ;  but 
if  no  such  receipt  or  bill  has  been  delivered  to  the  shipper  upon 
the  receipt  of  the  goods  for  transportation,  it  may  nevertheless 
be  shown  by  parol  proof  that  the  goods  have  actually  been  deliv- 
ered and  the  carrier  has  actually  received  them  for  shipment; 

14  Phillips  V.  Earle  et  al.,  8  Pick.  structive.      Merriam    v.    Railroad 

182.     There  must  be  acceptance.  Co.,    20    Conn.    854;    Converse    v. 

Hutchinson    on    Carriers,    §    87;  Transportation  Co.,  33  Conn.  166; 

Cronkite  v.  Wells,  31  N.  Y.  247.  Green   v.   Railroad   Co.,   38    Iowa, 

Acceptance  may  be  actual  or  con-  100. 


442  CARRIERS.  [§  452, 

and  so  well  fixed  and  settled  is  this  rule,  that  where  by  statute 
it  was  made  compulsory  upon  the  carrier  to  give  to  the  shipper 
a  receipt  for  the  goods  or  a  bill  of  lading,  the  delivery  and  ac- 
ceptance being  complete  and  no  receipt  or  bill  of  lading  having^ 
been  given,  it  was  held  the  carrier  was  liable.^^ 

Where  goods  were  delivered  on  board  a  vessel  at  New  York 
to  be  carried  to  England,  were  receipted  for,  the  receipt  specify- 
ing the  price  of  freight,  but  before  bills  of  lading  were  executed,- 
and  before  the  ship  sailed,  she  was  burned  with  the  goods  on 
board  without  any  actual  negligence  on  defendants'  part,  the 
defendants  were  held  liable  as  common  carriers  for  the  loss  of 
the  goods.^^  And  where  the  shipper  loaded  goods  into  a  car  fur- 
nished by  the  carrier  for  the  purpose  of  the  particular  shipment, 
the  agent  of  the  company  assenting  thereto,  it  was  held  that  the 
goods  were  as  much  in  the  possession  of  the  carrier  as  though 
they  had  been  delivered  at  its  warehouse  for  shipment.  Such 
goods  so  delivered  having  been  destroyed  by  fire  before  the  bill 
of  lading  had  been  made  out,  the  carrier  was  held  liable;  the 
liability  having  attached  from  the  time  of  accepting  the  goods 
for  transportation.^'' 

And  in  SJielton  v.  Merchants'  Transportation  Co}^  it  was  held 
that  when  goods  were  delivered  to  a  carrier  marked  with  the 
name  and  address  of  the  consignee,  the  common-law  liability  at- 
taches even  though  no  contract  or  bill  of  lading  was  given  the 
shipper.  Upon  the  delivery  of  the  goods  in  the  warehouse  of 
the  carrier  with  the  name  of  the  consignee  and  place  of  desti- 
nation, the  agent  of  the  carrier  having  notice  of  such  delivery, 
and  that  it  is  for  the  purpose  of  transportation  as  marked,  all 

15  Montgomery    &    Co.    v.    Kolb,  v.  The  Water  Witch,  4  Fed.  Cas. 

73    Ala.    396.      Held,    "while    the  No.  1,971.     A  carrier  is  liable  for 

statute  makes  it  the  duty  of  the  goods    from    the    time    they    are 

common  carriers  to  give  a  receipt  shipped,  although  the  bill  of  lad- 

for  the  merchandise  delivered  to  ing  may  be  actually  signed   sub- 

them  for  transportation,  their  fail-  sequent  to  the  loss.    Snow  et  al.  v. 

ure  to  do  so  cannot  vary  their  lia-  Carruth  et  al.,   22   Fed.   Cas.   No. 

bility    if    delivery    is    suflSciently  13,144. 

shown."     A  master  who  receives  is  Lakeman  v.  Grinnell,  18  N.  Y. 

goods  on  board  his  vessel  and  car-  Sup.  Ct.  (5  Bosw.)  625. 

ries  them  to  their  destination  sub-  i"  Illinois  Cent.  R.  Co.  v.   Smy- 

jects  the  vessel   to  the  common-  ser,  38  111.  354;   Toledo  R.  Co.  v. 

law  liability  of  a  carrier,  though  Gilvin,  81  111.  511. 

there  is  no  bill  of  lading  or  other  is  36  N.  Y.  Supp.  Ct.  527. 
agreement  entered  into.     Brower 


§    454.]  FIXING   LIABILITY.  443 

is  done  that  the  shipper  can  do;  the  goods  are  in  the  possession 
and  control  of  the  carrier;  they  are  actually,  as  we  have  seen, 
in  transit,  and  the  liability  as  common  carrier  attaches  at  once, 
and  the  mere  failure  or  even  refusal  of  the  agent  of  the  carrier 
to  give  and  deliver  to  the  shipper  a  bill  of  lading  or  a  receipt 
for  the  goods  will  not  relieve  the  carrier  from  liability  at  least 
for  ordinary  diligence;  ^^  but  the  receipt  for  the  goods,  or  that 
part  of  the  bill  of  lading  which  is  held  to  be  a  receipt,  given  by 
the  common  carrier  to  the  shipper  on  delivery  of  the  goods,  may 
be  varied  or  even  contradicted  by  parol  proof.  So,  in  case  no 
goods  were  actually  delivered,  although  a  bill  of  lading  was 
made  out  and  delivered  to  the  shipper,  the  carrier  cannot  be  held 
liable  upon  it  for  the  goods  described  or  receipted  in  it.^° 

§  453.  Action  for  refusal  to  accept  and  transport  goods. — 
This  subject  has  already  been  somewhat  considered,^^  but,  in- 
discussing  the  subject  of  delivery,  the  duty  of  the  shipper  in 
that  respect,  the  accepting  and  transporting  of  property,  it  seems 
necessary  to  call  attention  to  some  requisites  to  the  sustaining 
of  an  action  for  failure  of  the  carrier  to  perform  his  duty.  In 
order  to  sustain  an  action  against  the  carrier  for  refusal  to  re- 
ceive and  transport  the  goods,  it  will  at  once  occur  to  the  reader 
that  the  following  requisites  on  the  part  of  the  shipper  and  car- 
rier must  be  observed:  (1)  A  tender  of  the  goods;  (2)  payment 
of  the  freight  if  demanded,  and  if  not,  an  offer  or  willingness 
to  pay;  (3)  an  ability  to  receive  and  transport  the  goods. 

§  454.  Tender  of  the  goods  and  payment  of  freight. — It  has 
been  said  that  in  order  "to  sustain  an  action  against  a  railroad 
company  for  non-transportation  of  freight  there  must  be  evi- 
dence of  a  tender  on  the  part  of  the  plaintiff,  or  of  a  willingness 

19  Aiken  v.  Chicago,  etc.  R.  Co.,  L.  R.  A.  263.  "A  carrier's  duty  is 
68  Iowa,  363,  25  Am.  &  Eng.  R.  not  limited  to  the  transportation 
Cases,  377;  Cragin  v.  N.  Y.  Cent.  of  goods  delivered  for  carriage. 
R.  Co.,  51  N.  Y.  63.  "A  shipper's  He  must  exercise  such  diligence 
knowledge  of  directions  to  the  car-  as  is  required  by  law  to  protect 
Tier's  agent  not  to  receive  certain  the  goods  from  destruction  and 
articles  for  transportation  will  not  injury  from  any  source  which  may 
relieve  the  carrier  from  liability  if  be  averted,  and  which  in  the  ex- 
their  transportation  is  actually  un-  ercise  of  care  and  ordinary  intel- 
dertaken."  Bennett  v.  American  ligence  may  be  known  or  antici- 
Trans.  Co.,  83  Me.  236.  pated."    Beard  v.  111.  Cent.  R.  Co.,. 

20  National   Bank  of  Commerce  79  Iowa,  518,  7  L.  R.  A.  280. 
V.  Chicago  R.  Co.,  44  Minn.  224,  9  21  Ante,  §  430. 


444  CARRIERS.  [§   456. 

to  pay  the  customary  price  of  such  carriage.  But  it  has  been 
generally  held  that  the  payment  of  the  freight  is  not  necessary 
to  sustain  an  action  against  a  carrier  for  refusing  to  carry  or 
delay  in  carrying  freight  unless  it  is  required  by  the  carrier. ' '  ^^ 
But  where  an  action  was  brought  because  of  a  refusal  on  the  part 
of  the  carrier  to  transport  coal,  it  was  held  that  "a  refusal  of 
the  carrier  to  transport  the  coal  does  not,  in  the  absence  of  the 
actual  tender  of  a  definite  amount  for  transportation,  amount  to 
a  waiver  of  such  tender  so  as  to  subject  the  carrier  to  liability 
for  loss  of  business  caused  by  relying  upon  such  refusal. ' '  ^^ 

§  455.  Who  may  sue. — The  action,  as  will  be  seen,  must  nec- 
essarily arise  from  the  business  transacted  between  the  shipper 
and  the  railroad  company.  It  is  because  of  the  refusal  of  the 
railroad  company  to  receive  the  goods  for  transportation  from 
the  shipper  that  the  suit  is  commenced ;  therefore  it  follows  that 
the  parties  directly  in  interest  are  the  shipper  and  the  carrier; 
it  is  therefore  the  holding  of  the  courts  that  the  refusal  of  the 
carrier  to  take  the  goods  for  a  particular  consignee  is  in  viola- 
tion of  an  obligation  to  the  shipper,  and  not  to  the  consignee, 
and  that  an  action  therefor  for  damages  by  the  consignee  would 
not  lie ;  that  the  proper  plaintiff  would  be  the  shipper.^* 

§  456.  The  liability. — The  action,  it  will  be  remembered,  is 
for  refusing  to  receive  and  transport  the  goods.  In  this  case  the 
carrier  does  not  receive  the  property  into  his  custody  and  con- 
trol. The  property  is  merely  left  with  the  shipper;  it  would 
therefore  follow  that  the  extraordinary  liability  w^hich  the  com- 
mon law  places  upon  the  carrier  could  not  attach  in  this  case, 
for  in  order  that  the  carrier  be  liable  for  the  extraordinary  lia- 
bility, he  must  have  received  the  goods  into  his  custody  and  con- 
trol; therefore  the  liability  in  such  case  is  based  upon  the  ques- 
tion of  actual  damage  that  results  to  the  shipper  by  reason  of  the 
refusal  to  accept  and  transport  the  property.^^ 

22  Galena  &  Car.  Co.  v.  Rae,  18  and  it  was  held  that  the  measure 
111.  488,  G8  Am.  Dec.  574.  of  damages  against  the  carrier  for 

23  Wilder  v.  Johnsburg  &  L.  C.  a  violation  of  his  duty  or  contract 
Ry.  Co.,  66  Vt.  ff36,  30  Atl.  41.  in   respect   to   the   transportation 

24  Lafaye  v.  Harris,  13  La.  Ann.  of  property  should  be  such  as  to 
553.  do  justice  and  to  award  full  com- 

25  In  Cobb,  Blasdel  &  Co.  v.  I.  pensation  and  no  more  to  the 
C.  R.  Co.,  38  Iowa,  601,  630,  the  party  injured.  And  it  was  there 
contention,  among  other  things,  held  that  the  true  measure  of 
was  as  to  the  measure  of  damages,  damage   would   be   the   difference 


§    457.]  FIXING  LIABILITY.  445 

§  457.  Duty  to  provide  proper  vehicles. — After  having  re- 
ceived the  goods  for  shipment  it  goes  without  saying  that  it  is 
the  duty  of  the  carrier  to  furnish  proper  vehicles  and  proper 
conveyance  for  the  transportation  of  the  freight.  Now,  what 
would  be  proper  vehicles  is  a  question  that  must  be  determined 
largely  by  the  class  of  freight  that  is  to  be  shipped.  If  a  rail- 
road company  is  employed  to  transport  railroad  iron,  a  flat-car 
is  a  very  proper  vehicle ;  on  the  other  hand,  such  a  car  would  be 
very  inappropriate  if  the  freight  were  bales  of  hay  or  kegs  of 
powder,  and  in  this  connection  the  times  and  customs  of  the 
times  will  have  something  to  do  with  the  question.  In  these  days 
of  refrigerator  cars  it  would  not  be  expected  that  a  carrier  would 
be  excused  if  loss  occurred  on  account  of  shipping  dressed  beef 
a  long  distance  in  a  common  car,  or  in  a  refrigerator  car  without 
ice.  Or,  if  he  is  shipping  fruit  or  other  perishable  property,  if 
he  fails  to  properly  care  for  it,  according  to  modem  usage  in 
that  respect;  and  where  strawberries  were  shipped  from  Cali- 
fornia to  New  York  and  Philadelphia  in  a  refrigerator  car  that 
was  furnished  to  the  railroad  company  by  a  transportation  com- 
pany which  agreed  to  keep  the  goods  properly  refrigerated,  but 
failed  to  do  so,  and  for  lack  of  ice  the  berries  were  lost,  it  was 
held  that  the  railroad  company  was  liable,  and  the  agreement  of 
the  transportation  company  could  not  be  considered  a  defense.^*' 


between   the    price    paid    for    the  eration,  furnished  its  cars  to  the 

goods  and   the  price   under  their  plaintiff  in  error.  These  cars  were 

contract  which  was  with  the  gov-  agencies   or   means   employed   by 

ernment,  less   the  freight  to  the  the  plaintiff  in  error  for  carrying 

point  of  destination.     Bridgeman  on    its    business    and    performing 

V.  Steamboat  Emily,  18  Iowa,  510;  its  duty  to  the  public  as  a  com- 

Jamison   v.   Gray,    29    Iowa,    537;  mon  carrier,  one  of  which  was  to 

Mich.  Southern  R.  Co.  v.  Caster,  provide  suitable  cars  for  the  safe 

13  Ind.  164;   Toledo,  W.  &  W.  R.  and  expeditious  carriage  and  pres- 

Co.  V.  Roberts,  71  111.  540;  Louis-  ervation  of  the  freight  it  under- 

ville,  etc.  R.  Co.  v.  Flannigan,  113  took   to   carry.     A    railroad    com- 

Ind.    488,    14    N.    E.    307;    Ward's  pany  cannot  escape  responsibility 

Cent.  &  P.  Lake  Co.  v.  Elkins,  34  for  its  failure  to  provide  cars  rea- 

Mich.  439;  O'Conner  v.  Forster,  10  sonably  fit  for  the  conveyance  of 

Watts,  418;   Laurent  v.  Vaughan,  the  particular  class  of  goods  it  un- 

30  Vt.  90.  dertakes  to  carry  by  alleging  that 

26  New  York,   etc.   v.   Cromwell  the  cars  used  for  the  purposes  of 

(Va.),  49  L.  R.  A.  462.     The  court  its  own  transit  were  the  property 

say:  "The  California  Fruit  Trans-  of   another.     The   undertaking   of 

portation  Company,  for  a  consid-  the  plaintiff  in  error  was  to  prop- 


446 


CARRIEES. 


[§  457. 


And  so  where  butter  was  received  for  transportation  from  a 
point  in  Iowa  to  New  Orleans,  the  butter  was  put  in  a  refrigera- 
tor car  by  the  company  receiving  it  and  afterwards  put  into  a 
common  box-car,  the  second  company  having  no  refrigerator 
cars.  It  was  held  that,  notwithstanding  this,  the  company  was 
liable  for  the  loss  of  the  butter;  the  court  saying,  "a  carrier's 
duty  is  not  limited  to  the  transportation  of  goods  delivered  for 
carriage.  He  must  exercise  such  diligence  as  is  required  by  law 
to  protect  the  goods  from  destruction  and  injury  resulting  from 
conditions  which,  in  the  exercise  of  due  care,  may  be  averted 
or  counteracted.  He  must  guard  it  from  destruction  or  injury 
by  the  elements,  from  the  effects  of  delay,  indeed,  from  every 
source  of  injury  which  he  may  avert,  and  which  in  the  exercise 
of  care  and  ordinary  intelligence  may  be  known  or  anticipated. 
Unknown  causes,  or  those  which  are  inherent  in  the  nature  of 
the  goods,  and  cannot  be  in  the  exercise  of  diligence  averted, 
will  not  render  the  carrier  liable.  The  nature  of  the  goods  must 
be  considered  in  determining  the  carrier's  duty.  Some  metals 
may  be  transported  in  open  cars.  Many  articles  of  commerce 
when  transported  must  be  protected  from  rain,  sunshine  and 


erly  care  for  and  safely  carry  the 
fruit  of  the  defendant  in  error, 
and  it  is  immaterial  that  the  cars 
in  which  they  were  carried  were 
owned  by  the  California  Fruit 
Transportation  Company,  or  that 
such  company  undertook  to  ice 
said  cars  or  to  pay  for  the  ice. 
As  between  the  plaintiff  in  error 
and  defendant  in  error,  the  Cali- 
fornia Fruit  Transportation  Com- 
pany and  its  employees  were  the 
agents  of  the  plaintiff  in  error.  So 
far  as  the  defendant  in  error  was 
concerned,  the  plaintiff  in  error 
was  under  the  same  obligation  to 
care  for  the  fruit  that  it  would 
have  been  had  the  refrigerator 
cars  belonged  to  it.  For  these  rea- 
sons the  judgment  is  affirmed." 
In  The  Northern  Belle,  9  Wall. 
526,  the  court  discussed  the  mod- 
ern manner  of  loading  grain 
through  conductors  into  the  cars 


or  boats  instead  of  putting  it  in 
sacks  as  was  formerly  done,  the 
contention  being  in  the  case  that, 
on  account  of  the  unseaworthiness 
of  the  barge  and  its  unfitness  for 
holding  the  cargo  thus  loaded,  the 
wheat  was  damaged.  It  was  held 
in  this  case  that  the  carrier  must 
know,  at  his  own  peril  the  condi- 
tion of  the  vehicle  in  which  he  car- 
ries the  goods  of  the  shipper,  for 
the  reason  that  the  shipper  of  the 
cargo  is  under  no  obligation  to  look 
after  this  matter,  and  he  has  no 
m^eans  of  obtaining  any  positive 
information  if  he  should  attempt 
it;  that  it  is  the  duty  of  the  car- 
rier to  furnish  a  vehicle  which  is 
entirely  adapted  to  the  particular 
work;  and  when  from  any  cause 
it  is  not  fit  or  not  adapted  to  the 
carrying  of  goods,  and  damage  re- 
sults, the  carrier  will  be  liable. 


§    457.]  FIXING  LLVBILITY.  447 

heat,  and  must  have  cars  fit  for  their  safe  transportation.  Live 
animals  must  have  food  and  water  when  the  distance  of  trans- 
portation demands  it.  Fruit  and  some  other  perishable  articles 
must  be  carried  with  expedition  and  protected  from  frost.  So 
the  carrier  must  attend  to  the  character  of  the  goods  he  trans- 
ports. He  is  informed  thereof  by  inspection  of  the  freight  bills, 
■or  by  other  papers  accompanying  the  shipment.  In  the  case  be- 
fore us,  the  marks  on  the  baggage  and  the  way-bill  disclosed  that 
the  subject  of  the  shipment  was  butter.  The  employees  of  de- 
fendant were  endowed  with  intelligence  which  taught  them  that 
the  season  was  summer,  when  warm  weather  prevailed ;  that  but- 
ter in  common  cars  would  be  greatly  injured  by  the  ordinary 
heat  of  the  climate,  and  that  the  butter  as  it  approached  its  des- 
tination would  be  subject,  by  reason  of  the  change  of  latitude, 
to  greatly  increased  heat  from  the  weather.  All  of  these  things 
are  familiarly  known  to  all  men.  Surely,  the  law  will  presume 
that  defendant's  employees  had  full  knowledge  thereof.  The 
law  required  the  defendant,  having  received  the  perishable  cargo 
involved  in  this  suit,  to  exercise  the  care  and  diligence  necessary 
to  protect  it,  and  if  improved  cars  for  the  transportation  of  ar- 
ticles of  commerce  liable  to  injuiy  from  heat  were  in  use,  it  was 
defendant's  duty  to  use  such  ears  in  carrying  the  butter."  ^^ 

And  so  the  obligation  or  duty  would  be  the  same  upon  the  car- 
rier in  case  it  were  necessary  in  the  carrying  of  the  goods  to 
preserve  them  from  frost;  and  in  order  that  the  carrier  may 
meet  these  requirements,  he  must  provide  himself  with  vehicles 
that  are  appropriate  for  the  carriage  of  the  property  he  accepts 
for  transportation,  and  if  he  is  negligent  in  the  providing  of 
such  vehicles  and  such  improved  facilities,  he  will  be  held  liable 
for  any  damage  that  may  result  because  of  such  failure  or  negli- 
gence. 

27  Beard  v.  111.  Cent.  R.  Co.,  79  Transp.  Co.  v.  Cornforth,  3  Colo. 

Iowa,   510,   7  L.  R.  A.   280,  citing  280;  Hutchinson  on  Carriers,  §  294: 

numerous   cases;    Hewett  v.   Chi-  Steinway  v.  Erie  R.  Co.,  43  N.  Y. 

cago,  B.  &  Q.  R.  Co.,  63  Iowa,  611;  123;  Boscowitz  v.  Adams  Ex.  Co., 

Sager  v.  Portsmouth,  St.  P.  &  E.  93  111.  525;    Hannibal  &   St.  J.  R. 

R.    Co.,    31   Mo.    228;    Hawkins   v.  Co.  v.  Swift,  12  Wall.  262;    Helli- 

Great  Western  R.  Co.,  17  Mich.  62;  well  v.  Grand  Trunk  R.  Co.,  7  Fed. 

Railway  Co.  v.  Pratt,  22  Wall.  123;  76;   Paramore  v.  Western  R.  Co.. 

Wing  V.  N.  Y.  &  E.  R.  Co.,  1  Hilt.  53  Ga.  385;  Dixon  v.  Richmond  & 

(N.  Y.)  241;   Merchants'  Dispatch  D.  R.  Co.,  74  N.  C.  538. 


CHAPTER  V. 


FIXING  LIABILITY   OF   CARRIER— THE   BILL   OF  LADING. 


§  458.  Description  and  office  of  the 
bill  of  lading. 

459.  Its  negotiability. 

460.  The      consignor      consigns 

goods  to  himself. 

461.  The  bill  of  lading  with  draft 

attached. 


§  462.  Bill  of  lading  as  proof. 

463.  Authorities     not    en- 
tirely harmonious. 

464.  Conclusiveness    as    to   con- 

dition,   weight,    contents 
or  value. 

465.  By  whom  issued. 


§  458.  Description  and  office  of  the  bill  of  lading. — The  bill 
of  lading  is  both  a  receipt  for  the  goods  delivered  for  shipment, 
from  the  common  carrier  to  the  shipper  or  consignor,  and  a  con- 
tract on  the  part  of  the  carrier  and  the  shipper  that  the  carrier 
will  transport  the  goods  to  their  destination  if  on  its  road,  and 
if  not,  that  he  will  deliver  them  to  another  carrier  if  there  is 
such  an  one,  who  will  carry  them  to  their  destination.  To  the 
bill  of  lading  are  generally  attached  the  limitations  that  the  com- 
mon carrier  demands  shall  be  a  part  of  the  contract.  It  is  not 
necessary,  in  order  to  fix  the  liability  of  the  carrier,  that  he  shall 
issue  to  the  shipper  a  bill  of  lading,  but  it  is  very  important,  as 
evidence  of  the  acceptance  of  the  goods  delivered  for  immediate 
transportation  and  as  showing  when  the  relation  commenced. 
This  bill  of  lading  also  evidences  very  largely  the  duty  and  lia- 
bility of  the  carrier  as  to  the  particular  freight  received  for  ship- 
ment while  in  transit,  and  his  duty  at  the  termination  of  the 
route.  It  is  often  issued  in  triplicate,  a  copy  being  kept  by  the 
carrier,  the  original  given  to  the  shipper,  together  with  a  copy 
either  to  be  kept  by  the  shipper  or  transmitted  by  him  to  the 
consignee.  It  is  the  original  bill  of  lading  that  is  the  most  im- 
portant. This  original  is  the  bill  that  the  common  carrier  will 
demand  at  the  end  of  the  route  before  the  delivery  of  the  goods. 

The  bill  of  lading  has  another  important  office,  and  that  is  as 
commercial  paper  or  security.  By  it  the  carrier  acknowledges 
that  he  has  received  from  the  owner  or  shipper  the  goods  de- 
scribed for  immediate  transportation  and  that  they  are  con- 
signed to  the  person  therein  named  as  consignee;  because  of  this 


§    460.]  FIXING  LIABILITY — BILL  OF  LADING.  449 

the  bill  of  lading  at  once  becomes  valuable  to  the  consignee,  its 
value  being  coextensive  with  the  value  of  the  goods  shipped ; 
for  the  carrier  by  it  acknowledges  not  only  that  he  has  the  pos- 
session of  the  property  for  transportation,  but  that  he  is  in  duty 
bound  to  deliver  the  property  named  in  the  bill  at  its  destina- 
tion to  the  consignee  therein  named.  The  bill  thus  becomes  an 
evidence  of  ownership  of  the  consignee,  coupled  with  the  duty 
of  the  carrier  to  see  that  he  receives  the  property;  and  so  the 
consignee  may  use  the  bill  of  lading  as  property.^ 

§  469.  Its  negotiability. — While  the  bill  of  lading  is  not  ne- 
gotiable as  commercial  paper,  it  may  be  transfered  by  indorse- 
ment so  as  to  become,  in  the  hands  of  the  consignee  or  his  order, 
a  claim  for  the  delivery  of  the  property ;  that  is  to  say,  it  is  not 
commercial  paper  which  will  pass  current  as  do  promissory 
notes,  or  that  class  of  commercial  paper  which  passes  by  indorse- 
ment, but  it  is  rather  the  title  to  the  goods  described  in  it  that 
passes.  It  stands  for  the  goods  themselves  and  not  for  any  par- 
ticular amount  of  money.  It  is  a  claim  for  the  delivery  of  the 
property  from  the  carrier  company;  it  is  in  the  nature  of  a 
gwost-negotiable  instrument.  It  is  upon  the  theory  that  the  com- 
mon carrier  can  satisfy  his  contract  and  obligation  only  by  deliv- 
ering the  property  to  the  person  or  company  who  presents  the 
bill  of  lading,  and  then  only  by  following  the  instructions  of  the 
shipper  that  the  carrier  is  bound  to  follow.^ 

§  460.  The  consignor  consigns  goods  to  himself. — The  ship- 
per, in  order  to  protect  himself,  often  consigns  the  goods  to  him- 
self, this  giving  him  the  privilege  to  control  the  delivery  of  the 
property  at  the  end  of  the  route;  and  it  often  becomes  impor- 
tant in  cases  where  goods  are  transported  to  be  marketed  at  the 
termination  of  the  shipment ;  or  he  may,  of  course,  consign  them 
to  a  third  party.  In  either  case  it  will  become  the  duty  of  the 
common  carrier  to  deliver  the  property  according  to  the  contract 
in  the  bill  of  lading  and  to  the  person  named  as  consignee,  or  his 
order,  and  to  no  one  else.     And  in  order  that  the  carrier  may 

1  Cleveland,  etc.  R.  Co.  v.  C.  &  etc.  v.  Baltimore,  etc.  R.  Co.,  99 
A.  Potts,  etc.,  33  Ind.  App.  564,  71  Md.  661,  59  Atl.  134;  Haas  &  Co. 
N.  E.  685;  In  re  McElheney,  178  v.  Citizens'  Bank  (Ala.  1905),  30 
N.  Y.  610,  70  N.  E.  1102.  So.  129,  1  L.  R.  A.    (N.  S..)    242; 

2  Genson  Co.  Nat.  Bank  v.  Nash-  Kentucky,  etc.  Co.  v.  Bank,  28  Ky. 
ville,  etc.  R.  Co.   (Tex.  Civ.  App.,  Law  Rep.  486,  89  S.  W.  482. 
1906),  79  S.  W.  1094;    Nat.  Bank, 


450  CARRIERS.  [§   461. 

protect  himself,  he  may  require  that  the  ori^nal  bill  of  lading 
shall  be  surrendered  to  him  at  the  time  he  delivers  the  goods 
shipped. 

§  461.  The  bill  of  lading  with  draft  attached. — This  has  come 
to  be  a  matter  of  very  great  importance  in  the  commercial  world. 
The  shipper,  for  greater  security,  at  the  time  of  obtaining  his 
bill  of  lading  for  goods  intended  for  the  market  at  their  destina- 
tion, often  consigns  them  to  himself  or  order;  he  then  attaches 
to  the  bill  of  lading  a  draft  for  the  amount  of  money  that  he  is 
to  receive  from  the  buyer  with  his  indorsement  upon  the  bill  of 
lading  which  will  obtain  a  delivery  of  the  property;  he  sends 
the  bill  of  lading,  with  the  draft  attached,  to  some  bank  in  the 
city  where  the  goods  are  to  be  delivered,  with  instructions  to  de- 
liver the  bill  of  lading  to  the  purchaser  upon  payment  of  the 
draft  attached.  Or,  if  the  goods  are  consigned  to  the  purchaser, 
he  may  pursue  the  same  course — attach  the  draft  to  the  bill  of 
lading,  and  transmit  it  to  the  bank  with  instructions  that  it  be 
delivered  upon  the  payment  of  the  draft.  Often,  and  generally, 
the  shipper  makes  this  draft  through  his  home  bank  and  thus 
obtains  a  credit  at  his  home  bank  for  the  amount  in  advance. 
This  manner  of  shipment  and  the  collection  at  once  shows  to  us 
the  importance  of  the  business,  and  the  reasons  for  a  strict 
compliance  with  the  rules  of  law  governing  the  transaction,  and 
particularly  the  liability  of  the  common  carrier  as  well  as  the 
bank  to  whom  the  instructions  are  given  as  to  the  delivery  of  the 
bill  of  lading.^ 

3  We  here  append  a  copy  of  the  bill  of  lading  made  up  with  fictitious 
names  and  amounts;  also  a  copy  of  the  conditions  that  are  usually 
printed  upon  the  back  of  the  bill.  This  bill  of  lading,  with  the  condi- 
tions, is  the  bill  of  lading  adopted  by  the  Eastern  TraflBc  Association. 
We  also  append  a  draft  for  the  amount  The  draft,  as  we  have  said, 
is  usually  attached  to  the  bill  of  lading.  It  is  the  practice  of  some  of 
the  railroad  companies  to  consign  the  goods  to  the  consignor  or  order, 
which  indicates  to  them  that  a  draft  is  to  be  attached.  The  banks 
often  adopt  the  stamping  upon  the  draft  itself  of  certain  initials,  as 
D.  A.  (meaning  "draft  attached").  With  this  bill  of  lading  and  draft 
attached  are  instructions  forwarded  to  the  bank  not  to  deliver  the  bill 
of  lading  to  the  consignee  until  the  draft  is  paid.  As,  for  example,  in 
the  case  made  up  by  this  bill  of  lading  with  draft  attached,  John  Jones 
goes  to  his  bank,  the  Detroit  National,  draws  his  draft  on  John  Doe, 
the  purchaser  in  New  York,  for  the  amount  of  the  shipment,  $6,000, 
delivers  the  bill  of  lading  to  the  Detroit  National  Bank,  which  attach<^s 
it  to  the  draft  and  sends  it  forward  to  the  bank  upon  which  it  is  dravm. 


§  461.; 


FIXING  LIABILITY — BILL  OF  LADING. 


451 


to  wit,  "National  Bank,  New  York,"  the  consignor,  taking  credit  at  his 
home  bank;  or,  if  the  home  bank  does  not  desire  to  give  him  credit 
for  the  amount,  awaits  the  collection  of  the  amount  through  the  bank. 
If  the  goods  are  shipped  with  the  draft  drawn  against  the  bill,  the  fol- 
lowing form  of  bill  is  used: 

MICHIGAN  CENTRAL  PAH^ROAD  CO. 


BILL  OP  LADING. 

Detroit,  Mich.,  December  It,  190t. 

Received  from  owner  by  Michigan  Central  Railroad  Company,  the  property  described 
below,  in  apparent  good  order,  except  as  noted  (contents  and  condition  of  contents  of  pack- 
ages unknown),  marked,  consigned  and  destined  as  indicated  below,  which  said  Company 
agrees  to  carry  to  the  said  destination,  if  on  its  road,  otherwise  to  deliver  to  another  carrier 
on  the  route  to  said  destination. 

It  is  mutually  agreed,  in  consideration  of  the  rate  of  freight  hereinafter  named,  as  to 
each  carrier  of  all  or  any  of  said  property  over  all  or  any  portion  of  said  route  to  destination, 
and  as  to  each  party  at  any  time  interested  in  all  or  any  of  said  property,  that  every  service 
to  be  performed  hereunder  shall  be  subject  to  all  the  conditions,  whether  printed  or  written, 
herein  contained,  both  on  the  face  and  on  the  bacJc  hereof,  and  which  are  hereby  agreed  to 
by  the  shipper  and  by  him  accepted  for  himself  and  his  assigns  as  just  and  reasonable. 

Upon  all  the  conditions,  whether  printed  or  written,  herein  contained,  both  on  the  face 

and  on  the  back  hereof,  it  is  mutually  agreed  that  the  rate  of  freight  from to is  to 

be,  in  cents  per  100  lbs: 


If.. Times 
First 
Class. 

If  First 
Class. 

If  Second 
Class. 

If  Third 
Class. 

If  Fourth 
Class. 

If  Fifth 
Oaes. 

If  Sixth 
Class. 

If  Special. 

Class. 

Rate. 

And  advanced  charges  at ,  $ . 

Marks,  Consignees  and  Destination. 


Shippers  order. 

Notify 

John  Doe, 
54  Broadway,  New  York,  N.  Y. 


Description  of  Articles. 


Wheat 

10,000  bushels 

More  or  less. 


Weight,  Subject  to 
Correction. 


SAMUEL  JACKSON,  Freight  Agent. 
Note  —  Upon  the  back  of  this  bill  are  printed  certain  conditions  which  we  do  not  append.— 
Author. 

The  draft  on  the  consignee,  John  Doe,  which  is  sent  through  the  bank  for 
payment  before  the  wheat  is  delivered  by  the  carrier,  may  be  as  follows: 


$6,000  Detroit,  Mich.,  December  12,  1901. 

One  day  after  sight Pay  to  the 

order  of  National  Bank,  New  York, 

Six  thousand.... Dollars. 

Value  received  and  charge  the  same  to  account  of 
To  John  Doe,  I  ^  ^     -r         a 

No.  1666.  54  Broadway,  New  York.   (  John  Jones.* 


4  Held,  that  the  seller's  delivery 
of  bill  of  lading  with  draft  at- 
tached, to  plaintiff  for  discount, 
was  for  the  purpose  of  transfer- 
ring the  right  of  possession  of  the 


property  as  security  for  the  draft 
and  not  for  the  mere  purposes  of 
collection,  and  that  it  had  priority 
over  an  attachment  levied  after  it 
was  given.     Mather  v.  Gordon,  77 


452  CARRIERS.  [§   462. 

§  462.  Bill  of  lading  as  proof. — The  bill  of  lading  is  both  a 
receipt  for  the  goods  delivered  to  the  carrier  and  an  agreement 
on  the  part  of  the  carrier  to  transport  the  goods  to  their  destina- 
tion and  deliver  them  to  the  consignee  or  his  order.  So  far  as 
the  bill  is  a  receipt  for  the  delivery  of  the  goods,  it  is  subject 
to  the  law  of  evidence  governing  receipts  and  may  be  explained, 
modified  or  varied,  or  even  entirely  avoided,  for  fraud  or  mis- 
take, and  this  by  parol  proof.  But  to  the  extent  that  it  is  a 
contract  between  the  parties,  as  that  the  carrier  will  carry  the 
goods  to  the  place  of  destination  designated  in  the  bill  and  de- 
liver them  to  the  persons  named,  as  the  consignee  or  his  order, 
or  as  to  any  other  contract  or  stipulation  contained  in  the  bill, 
it  is  subject  to  the  law  of  evidence  governing  written  contracts 
and  cannot  be  changed,  altered  or  varied  by  parol  proof.  But 
where  no  goods  were  actually  delivered  to  the  carrier  at  the  time 
of  the  issuing  of  the  bill  of  lading,  but  through  fraud  and  collu- 
sion the  shipper  and  the  agent  of  the  carrier  falsely  represent 
that  goods  have  been  delivered,  it  has  been  frequently  held  that 
the  carrier  would  not  be  liable  for  the  goods  described  in  the 
bill,  and  this  though  the  statutes  of  the  state  forbid  the  issuing 
of  a  bill  of  lading  unless  the  goods  described  in  it  were  actually 
in  the  possession  of  the  carrier  at  the  time.^ 

Pollard  V.  Vinton  ^  was  a  case  where  a  bill  of  lading  was  made 
and  delivered  for  a  quantity  of  cotton  in  the  usual  form.  The 
parties  to  whom  it  was   delivered   immediately   drew   a  draft 

Conn.    371,    59    Atl.    424;    Temple  agreed  that  an  additional  portion 

Nat.  Bank  v.  Louisville,  etc.  Co.,  of  the  goods  should  be  so  carried. 

26  Ky.   Law   Rep.   518,    82    S.    W.  Seward  v.  Stevens,  69  Mass.  97. 

253.  6  105  U.  S.  7;  Robinson  et  al.  v. 

5  St.  Louis,  etc.  R.  Co.  v.  Insur-  Memphis,  etc.  R.  Co.,  9  Fed.  129. 

ance  Co.,  139  U.  S.  223;  The  Wei-  "The  freight  agent  of  a  railroad 

lington,  1  Biss.   279.     "A  bill,   so  company   signed   a   bill   of  lading 

far  as  it  is  a  contract,  cannot  be  for    thirty-two    bales     of     cotton 

affected  b'y  parol,  though  subject  which  were  not  on  hand  and  were 

to  explanation  as  a  receipt."    Mc-  never    delivered    to    the    railroad 

Tyre  v.  Steel,  26  Ala.  487;  O'Brien  company  or  any  agent  for  it.    The 

v.  Gilchrist,  34  Me.  554;  Witzler  V.  plaintiffs    paid    a    draft    for    the 

Collins,  70  Me.  290,  35  Am.  Rep.  price  of  the  cotton  on  the  faith  of 

327.     But  where   a  bill   of  lading  the   bill   of  lading  attached   to  it 

expressly     provides     that     goods  and  indorsed  to  them,  and  never 

named  therein  may  be  carried  on  having   received    the   cotton   sued 

deck,  parol  evidence  is  inadmissi-  the  railroad  company  for  its  non- 

ble    to    show    that    the    shipper  delivery."    Held,  "that  the  carrier 


§    462. j  FIXING  LIABILITY — BILL   OF   LADING.  453 

on  the  plaintiffs  in  New  York,  payable  at  sight,  with  bill  of 
lading  attached,  which  draft  was  accepted  and  paid.  No  cotton 
was  shipped  on  the  steamboat  or  delivered  on  the  wharf,  or  to 
its  agent  for  shipment,  as  stated  in  the  bill  of  lading,  the  state- 
ment to  that  effect  being  untrue.  The  plaintiff,  upon  w^hom  the 
draft  was  drawn  and  the  bill  assigned,  having  paid  the  draft, 
brought  suit  against  the  owner  of  the  steamboat.  The  court 
in  its  opinion  say:  "A  bill  of  lading  is  an  instrument  well 
known  in  commercial  transactions,  and  its  character  and  effect 
have  been  defined  by  judicial  decisions.  In  the  hands  of  the 
holder  it  is  evidence  of  ownership,  special  or  general,  of  the 
property  mentioned  in  it,  and  of  the  right  to  receive  said  prop- 
erty at  the  place  of  delivery.  Notwithstanding  it  is  designed  to 
pass  from  hand  to  hand,  with  or  without  indorsement,  and  is 
efficacious  for  its  ordinary  purposes  in  the  hands  of  the  holder, 
it  is  not  a  negotiable  instrument  or  obligation  in  the  sense  that 
a  bill  of  exchange  or  a  promissory  note  is.  Its  transfer  does  not 
preclude,  as  in  those  cases,  all  inquiry  into  the  transaction  in 
which  it  originated,  because  it  has  come  into  the  hands  of  per- 
sons who  have  innocently  paid  value  for  it.  The  doctrine  of 
bona  fide  purchasers  applies  to  it  only  in  a  limited  sense.  It  is 
an  instrument  of  a  twofold  character.  It  is  at  once  a  receipt 
and  a  contract.  In  the  former  character  it  is  an  acknowledg- 
ment of  the  receipt  of  property  on  board  his  vessel  by  the  owner 
of  the  vessel.  In  the  latter  it  is  a  contract  to  carry  safely  and 
deliver.  The  receipt  of  the  goods  lies  at  the  foundation  of  the 
contract  to  carry  and  deliver.  If  no  goods  are  actually  received, 
there  can  be  no  valid  contract  to  carry  or  to  deliver.  To  these 
elementary  truths  the  reply  is  that  the  agent  of  defendant  has 
acknowledged  in  writing  the  receipt  of  the  goods,  and  promised 
for  him  that  they  should  be  safely  delivered,  and  that  the  prin- 
cipal cannot  repudiate  the  act  of  his  agent  in  this  matter,  be- 
cause it  was  within  the  scope  of  his  employment.  It  will  prob- 
ably be  conceded  that  the  effect  of  the  bill  of  lading  and  its 

was  not  estopped  to  show  that  no  Roy  &  Roy  v.  Northern  Pac.,  42 

cotton   was  in  fact   delivered   for  Wash.  572,  85  Pac.  53,  6  L.  R.  A. 

transportation;  that  the  agent  had  (N.  S.)  302,  and  notes;  Anderson 

no  authority,  real  or  apparent,  to  v.   Portland,  etc.  Co.,  37  Or.  483, 

sign    a   receipt   or   bill    of   lading  50  L.  R.  A.  235;  Swedish- Am.  Nat. 

until  actual  delivery  of  the  cotton.  Bank  v.   Chicago,   etc.   R.   Co.,   96 

and  the  company  was  not  liable."  Minn.  436,  105  N.  W.  69. 


454  CARRIERS.  [§  462. 

binding  force  on  the  defendant  is  no  stronger  than  if  signed 
by  himself  as  master  of  his  own  vessel.  In  such  case  we  think 
the  proposition  cannot  be  successfully  disputed  that  the  person 
to  whom  such  a  bill  of  lading  was  first  delivered  cannot  hold  the 
signer  responsible  for  goods  not  received  by  the  carrier.  .  .  . 
Before  the  power  to  make  and  deliver  a  bill  of  lading  could 
arise,  some  person  must  have  shipped  goods  on  the  vessel.  Only 
then  could  there  be  a  shipper,  and  only  then  could  there  be 
goods  shipped.  In  saying  this  we  do  not  mean  that  the  goods 
must  have  been  actually  placed  on  the  deck  of  the  vessel.  If 
they  came  within  the  control  and  custody  of  the  officers  of  the 
boat  for  the  purpose  of  shipment,  the  contract  of  carriage  had 
commenced,  and  the  evidence  of  it  in  the  form  of  a  bill  of  lading 
would  be  binding.  But  without  such  a  delivery  there  was 
no  contract  of  carrying,  and  the  agents  of  defendant  had  no 
authority  to  make  one.  They  had  no  authority  to  sell  cotton  and 
contract  for  delivery.  They  had  no  authority  to  sell  bills  of  lad- 
ing. They  had  no  power  to  execute  these  instruments  and  go 
out  and  sell  them  to  purchasers.  No  man  had  a  right  to  buy  such 
a  bill  of  lading  of  them  who  had  not  delivered  them  the  goods 
to  be  shipped." 

The  court  say,  further,  citing  The  Schooner  Freeman;  Hickox 
V.  Buckingham :''  "In  that  case  the  schooner  was  libeled  in 
admiralty  for  failing  to  deliver  flour  for  which  the  master  had 
given  tw^o  bills  of  lading,  certifying  that  it  had  been  delivered 
on  board  the  vessel  at  Cleveland  to  be  carried  to  Buffalo  and 
safely  delivered.  The  libelants,  who  resided  in  the  city  of  New 
York,  had  advanced  money  to  the  consignee  on  these  bills  of 
lading,  which  were  delivered  to  them.  It  turned  out  that  no 
such  flour  had  been  shipped,  and  that  the  master  had  been  in- 
duced, by  the  fraudulent  orders  of  a  person  in  control  of  the 
vessel  at  the  time,  to  make  and  deliver  the  bills  of  lading  to 
him,  and  that  he  had  sold  the  drafts  on  which  libelants  had 
paid  the  money  and  received  the  bills  of  lading  in  good  faith. 
A  question  arose  how  far  the  claimant,  who  was  the  real  owner 
or  general  owner  of  the  vessel,  could  be  bound  by  the  acts  of  the 
master  appointed  by  one  to  whom  he  had  confided  the  control 
of  the  vessel;  and  the  court  held  that,  having  consented  to  this 
delivery  of  the  vessel,  he  was  bound  by  all  the  acts  by  which  a 

7  18  How.    (U.   S.)    182. 


§    462.]  FIXING   LIABILITY — BILL   OF  LADING.  455 

master  could  lawfully  bind  a  vessel  or  its  owner.  The  court  in 
further  discussing  the  question  say:  Even  if  the  master  had 
been  appointed  by  the  claimant,  a  wilful  fraud  committed  by 
him  on  a  third  person,  by  signing  false  bills  of  lading,  would 
not  be  within  his  agency.  If  the  signer  of  a  bill  of  lading  was 
not  the  master  of  the  vessel,  no  one  would  suppose  the  vessel 
bound;  and  the  reason  is,  because  the  bill  is  signed  by  one  not  in 
privity  with  the  owner.  But  the  same  reason  applies  to  a  signa- 
ture made  by  a  master  out  of  the  course  of  his  employment. 
The  taker  assumes  the  risk,  not  only  of  the  genuineness  of  the 
signature,  and  of  the  fact  that  the  signer  was  master  of  the 
vessel,  but  also  of  the  apparent  authority  of  the  master  to 
issue  the  bill  of  lading.  "We  say  the  apparent  authority,  be- 
cause any  secret  instructions  by  the  owner,  inconsistent  with 
the  authority  with  which  the  master  appears  to  be  clothed, 
would  not  affect  third  persons.  But  the  master  of  a  vessel 
has  no  more  apparent  authority  to  sign  bills  of  lading  than  he 
has  to  sign  bills  of  sale  of  the  ship.  He  has  an  apparent  au- 
thority, if  the  ship  be  a  general  one,  to  sign  bills  of  lading  for 
cargo  actually  shipped;  and  he  has  also  authority  to  sign  a 
bill  of  sale  of  the  ship,  when  in  case  of  disaster,  his  power  of 
sale  arises.  But  the  authority  in  each  case,  arises  out  of,  and 
depends  upon,  a  particular  state  of  facts.  It  is  not  an  un- 
limited authority  in  one  case  more  than  in  the  other;  and  his 
act,  in  either  case,  does  not  bind  the  owner,  even  in  favor  of  an 
innocent  purchaser,  if  the  facts  on  which  his  power  depended 
did  not  exist;  and  it  is  incumbent  upon  those  who  are  about 
to  change  their  condition,  upon  the  faith  of  his  authority,  to 
ascertain  the  existence  of  all  the  facts  upon  which  his  authority- 
depends.  ' '  ^ 

8  It  is  said  by  the  court  in  Rob-  for  it  or  not;  neither  is  the  owner 
ins  V.  Memphis,  9  Fed.  139,  "these  estopped  to  show  the  facts  as  they 
authorities  establish  beyond  dis-  really  exist.  Some  courts  have 
pute  that  where  a  master  signs  a  reluctantly  yielded  to  this  princi- 
bill  of  lading  for  goods  not  re-  pie,  and  some  have  sought  to  re- 
ceived, or  for  more  than  are  re-  strict  or  qualify  it  in  the  supposed 
ceived,  he  acts  beyond  his  author-  interest  of  commercial  dealing; 
ity,  and  the  owner  is  not  liable  but  in  England,  although  a  statute 
either  to  the  original  shipper  or  makes  the  individual  signing  the 
any  consignee  of  the  bill  of  lad-  bill  of  lading  liable,  it  goes  no  fur- 
ing,  whether  he  makes  advances  ther,  and  the  doctrine  of  Grant  v. 
on  the  faith  of  it  or  gives  value  Norway,  10  C.  B.  665,  70  Eng.  C. 


456 


CARRIERS. 


[§  463. 


§  463. 


Authorities  not  entirely  harmonious. — While  it 


would  seem  that  great  weight  of  authority  is  as  stated  in  the 
text  and  cases  just  cited,  there  is,  however,  a  very  respectable 
line  of  cases  holding  that  where  a  third  party,  relying  upon 
the  statement  of  the  carrier  in  the  bill  of  lading,  has  invested 
his  money  by  w^ay  of  paying  the  draft  attached  to  the  bill,  the 
carrier  is  estopped  from  denying  the  facts  stated  in  the  bill. 
These  courts  do  not  base  their  holding  upon  the  negotiability 
of  the  bill  of  lading,  but  upon  the  ground  of  estoppel  in  pads. 

The  supreme  court,  in  Brooke  v.  Raihvay  Co./*  say:  ''As  be- 
tween principal  and  third  parties,  the  true  limit  of  the  agent's 
authority  to  bind  the  former  is  the  apparent  authority  with 
which  the  agent  is  invested;  but,  as  between  the  principal  and 


L.  664,  has  withstood  the  assaults 
upon  it  and  is  established  law.  It 
has  been  approved  by  the  supreme 
court  of  the  United  States,  and  di- 
rectly or  in  principle  by  other 
federal  courts."  Vandewater  v. 
Mills,  19  How.  90;  The  Lady 
Franklin,  8  Wall.  325;  The  Keo- 
kuk, 9  Wall.  517-519;  Buckley  v. 
Naumkeag  Co.,  24  How.  386,  392; 
The  Loon,  7  Blatchf.  244;  The 
Edwin,  1  Sprague,  477;  Relyea  v. 
Rolling  Mill  Co.,  42  Conn.  579; 
King  V.  Shepherd,  3  Story,  349, 
360;  Hutchinson  on  Carriers, 
§§  123,  124;  Miller  v.  Railroad  Co., 
99  N.  Y.  657;  Friedlander  v.  Rail- 
way Co.,  130  U.  S.  460;  National 
Bank  v.  Railroad  Co.,  44  Minn. 
224.  In  Gibbons  v.  Robinson,  63 
Mich.  146,  the  court  held:  "A  bill 
of  lading  constitutes  a  contract  be- 
tween the  parties  thereto,  and 
is  evidence  of  the  receipt  of  the 
goods,  of  their  condition  when  re- 
ceived, of  the  contract  of  carriage, 
and  to  whom  they  are  to  be  de- 
livered. It  is  not,  however,  con- 
clusive evidence  of  such  receipt  or 
condition  between  the  owner  and 
shipper,  but  so  far  as  it  is  an  un- 
dertaking to  transport  and  deliver 
the   goods   as   therein   stipulated. 


in  the  absence  of  fraud  or  mis- 
take, its  terms  cannot  be  altered 
or  varied  by  parol  proof  where  it 
forms  the  basis  or  subject-matter 
of  an  action  between  the  parties 
to  the  contract."  Pereira  v.  Cent. 
Pac.  R.  Co.,  66  Cal.  92;  Bissell  v. 
Price,  16  111.  408;  Chapin  v.  Chi- 
cago, etc.  R.  Co.,  79  Iowa,  582; 
Kirkman  v.  Bowman,  8  Rob.  (La.) 
246;  Atwell  v.  Miller,  11  Md.  348, 
69  Am.  Dec.  206;  Meyer  v.  Peck, 
28  N.  Y.  290;  Baltimore  v.  Brown, 
54  Pa.  St.  77;  Glass  v.  Goldsmith, 
22  Wis.  488.  But  see  St.  Louis  & 
S.  F.  R.  Co.  V.  Adams,  4  Kan.  App. 
305,  45  Pac.  920,  where  the  court 
held  that  railroad  companies  are 
estopped  from  denying  the  recitals 
in  the  bill  that  the  consignment 
had  in  fact  been  received.  Also 
Smith  V.  Missouri  Pac.  R.  Co.,  74 
Mo.  App.  48,  where  it  was  held 
that  as  against  a  iona  fide  holder, 
where  the  bill  of  lading  was  is- 
sued by  a  railroad  company,  the 
company  is  estopped  from  deny- 
ing that  the  goods  were  not  ac- 
tually received  by  the  company. 
9  108  Pa.  St.  529 ;  Adams  Exp. 
Co.  V.  Schlessinger,  75  Pa.  St.  246; 
Evans'  Agency,  193,  594,  606. 


§    463.]  FIXING   LIABILITY — BILL   OF   LADING.  457 

the  agent,  the  true  limit  is  the  express  authority  or  instruction 
given  to  the  agent.  The  principal  is  bound  by  all  the  acts  of  his 
agent  within  the  scope  of  the  authority  which  he  held  him  out 
to  the  world  as  possessing,  notwithstanding  the  agent  acted  con- 
trary to  instructions ;  and  this  is  especially  the  case  with  officers 
and  agents  of  corporations.  Since  a  corporation  acts  only 
through  agents,  it  is  bound  by  its  agents'  contracts  when  made 
ostensibly  within  the  range  of  their  office.  One  who  authorizes 
another  to  act  for  him  in  a  certain  class  of  contracts,  undertakes 
for  the  absence  of  fraud  in  the  agent  who  acts  within  the  scope 
of  his  authority.  The  authority  of  an  agent  to  act  for  and  bind 
his  principal  will  be  implied  from  the  accustomed  performance 
by  the  agent  of  acts  of  the  same  general  character  for  tlie 
principal  with  his  knowledge  and  consent.  These  elementary 
principles  are  founded  on  the  doctrine  that  where  one  of  two 
persons  must  suffer  by  the  acts  of  a  third  person,  he  who  has 
held  that  person  out  as  worthy  of  trust  and  confidence,  and  as 
having  authority  in  that  matter,  should  be  bound  by  it.  It  is 
conceded  in  this  case  that  the  company  did  not  authorize  the  is- 
suance of  bills  of  lading  without  receipt  of  the  goods,  but  it  put 
the  agent  in  its  place  to  do  that  class  of  acts,  and  it  should  be 
answerable  for  the  manner  in  which  he  conducted  himself  with- 
in the  range  of  his  agency.  Public  policy,  as  well  as  the  ulti- 
mate good  of  corporations  themselves,  requires  that  this  should 
be  the  rule." 

In  a  case  in  the  New  York  court,  where  bills  of  lading  were 
issued  for  a  quantity  of  lard  consigned  to  the  plaintiff,  the  con- 
signor drawing  upon  the  plaintiff  with  the  bill  of  lading  at- 
tached, and  upon  the  faith  of  the  bill  of  lading  the  drafts  were 
paid,  but  no  lard  was  ever  received  by  the  railroad  company, 
the  court  held  that,  as  the  agent  had  authority  to  issue  bills  of 
lading  for  goods  received  for  shipment,  the  bills  in  question  be- 
ing in  the  usual  form,  the  agent  must  be  considered  as  having 
the  necessary  authority.  ^** 

10  Armour  et  al.  v.  Mich.  Cent.  for    which    they    were    designed. 

R.  Co.,  65  N.  Y.  111.     The  court  The   representations   in   the   bills 

say:  "They  were  issued  with  the  were  made  to  any  one  who,  in  the 

expectation    tEat    they   would    be  course   of   business,   might   think 

acted   upon  by  bankers   or  other  fit  to  make  advances  on  the  faith 

capitalists.     It  cannot  complain  if  of  them.     There   is   thus   present 

the  bills  accomplished  the  purpose  every   element  necessary   to  con- 


458  CARRIERS.  [§  464. 

§  464.  Conclusiveness  as  to  condition,  weight,  contents  or 
value. — The  carrier,  it  may  be  said,  as  a  rule,  is  not  supposed 
to  know  the  condition  of  the  contents  of  packages  or  boxes  of 
goods  brought  to  him  for  shipment;  he  can  only  determine  that 
as  to  their  external  appearance  they  are  in  good  condition,  and 
so  if  their  condition  is  found  to  have  been  otherwise  on  account 
of  natural  decay,  or  propensities  of  the  goods  delivered,  that 
they  have  spoiled  or  wasted  because  of  leakage,  or  on  account 
of  unskilful  packing,  or  even  that  they  were  not  in  good  con- 
dition at  the  time  they  were  delivered,  these  facts  may  be 
shown  and  the  carrier  excused  from  liability.  But  if  the  loss 
or  damaged  condition  was  the  result  of  the  carrier's  own  negli- 
gence, and  this  fact  can  be  shown,  then  of  course  he  would  be 
liable. 

In  Richards  et  al.  v.  Doe  et  al.^'^  it  was  held  "that  a  recital 
by  the  defendants  in  the  bill  of  lading  that  the  goods  were  re- 
ceived in  good  order  and  condition,  though  prima  facie,  is  not 
conclusive  evidence  that  the  goods  were  free  from  internal  in- 
juries."  The  carrier  may  no  doubt  bind  himself  by  the  bill  of 
lading  so  as  to  become  liable  as  to  weight  or  contents,  or  even 
value  of  the  goods,  but  usually  he  excludes  liability  in  this  re- 
spect by  words  of  limitation;  that  is,  reciting  in  the  bill  of  lad- 
ing or  the  shipping  bill  that  as  to  contents  or  the  value  of  the 
goods,  or  weight,  it  is  unknown.  And  so  it  may  be  said  as  a 
general  rule,  that,  as  between  the  original  parties,  the  bill  is 
merely  prima  facie  evidence  as  to  weight  or  quantity,  and  not 
conclusive,  and  that  the  carrier  may  show  by  parol  evidence  that 

stitute  a  case  of  estoppel  in  pais,  been,  it  has  made  certain  repre- 
a  representation  made  with  the  sentations  upon  which  the  plaint- 
knowledge  that  it  might  be  acted  iffs  have  advanced  their  money 
upon,  and  subsequent  action  upon  in  good  faith.  If  the  defendant 
the  faith  of  it  to  such  an  extent  placed  undue  confidence  in  Mich- 
that  it  would  injure  the  plaintiffs  aels,  it  is  but  the  familiar  case  of 
If  the  representation  was  not  imposing  the  burden  upon  him 
made  good.  It  is  now  well  set-  who  unwisely  or  unguardedly  re- 
tled  that  fraud  is  not  necessary  posed  the  confidence."  Brown  v. 
to  constitute  a  case  of  estoppel.  Bowen,  30  N.  Y.  519;  Mfg.  & 
Though  the  defendant  was  in-  Traders'  Bank  v.  Hazard,  id.  226; 
duced  by  the  fraud  or  mistake  of  Shapley  v.  Abbott,  42  id.  443; 
Michaels  to  issue  these  bills,  that  Rawls  v.  Deshler,  4  Abb.  Ct.  App. 
is  immaterial.  Its  liability  de-  12;  Batavia  Bank  v.  N.  Y.  R.  Co., 
pends  on  the  fact  that,  no  matter  106  N.  Y.  195.  60  Am.  Rep.  440. 
what   its   inducements   may   have  n  100  Mass.  524. 


§    465.]  FIXING  LIABILITY — BILL   OP   LADING.  45^ 

a  smaller  quantity  was  actually  received,  or  the  shipper  may 
show  that  the  carrier  received  a  larger  quantity.^^ 

§  465,  By  whom  issued. — The  bill  of  lading  may  be  issued 
by  the  carrier  or  his  duly  authorized  agent.  It  is  not  neces- 
sary that  there  should  be  any  particular  form  of  appointment; 
the  principles  of  the  law  of  agency  will  apply.  Ratification  on 
the  part  of  the  carrier,  knowing  all  the  facts  as  to  the  acts  of 
one  claiming  to  act  in  behalf  of  the  carrier,  will  be  considered  to 
be  a  sufficient  appointment.  The  master  of  a  vessel,  because 
of  the  nature  of  his  appointment,  has  been  held  to  have  author- 
ity to  receive  freight  and  issue  a  bill  of  lading  therefor,^*  The 
person  issuing  the  bill  of  lading  must  have  authority  to  sign 
the  carrier's  name  to  the  bill,  for  the  bill  must  be  signed  by  the 
carrier  or  some  one  by  him  duly  authorized  before  it  can  have 
any  binding  effect. 

12  The   Lady   Franklin,   8   Wall.  Ohio  St.   118;    Chapin  v.  Chicago 

(U.  S.)    325;    The   Ethel,   59   Fed.  R.    Co.,   79   Iowa,   582,   42   Am.   & 

Rep.  473;   Strong  v.  Grand  Trunk  Eng.  R.  Cases,  542. 
R.    Co.,    15    Mich.    206,    Ryder   v.  i3  Costello  v.  Laths,  44  Fed.  105; 

Hall,  7  Allen,  456;  Meyer  v.  Peck,  The  Mary  Bradford,  18  Fed.  189. 
28   N.   Y.   590;    Dean  v.   King,   22 


CHAPTER  VI. 


LIABILITY  AND   LIMITATIONS   UPON   THE   LIABILITY   OF   THE 
COMMON  CARRIER. 


§  466.  Liability    of    the    common 
carrier. 

467.  Reasons   for   extraordinary 

liability. 

468.  Inanimate    and    ani- 
mate freight. 

I.  When  the  Loss  ob  Injury  is 

CAUSEa>  BY  THE  ACT  OF  GOD. 

469.  The  act  of  God. 

470.  Does  not  always  excuse  the 

carrier  from  all  care. 

471.  The  act  of  God  must  be  the 

conclusive  and  proxi- 
mate cause. 

472.  What   will    and    what    will 

not  excuse — Summary. 

473.  Burden  of  proof. 

II.  By  the  Public  Enemy. 

474.  The  public  enemy. 

475.  The   diligence  required   on 

the  part  of  the  carrier. 

476.  Diligence,  even  though  the 

property  is  injured  or 
destroyed  after  the  event 
has  occurred. 

477.  Strikers,    rioters    and    rob- 

bers not  the  public  en- 
emy. 

III.  Where  the  Loss  ob  Injuby  is 

the  Result  of  the  Acts  of 
the  Shippeb. 

478.  Reasons  of  the  liability  of 

the  carrier. 


§  479.  Contributory   negligence. 

480.  Improperly   marking  goods 

by  the  consignor. 

481.  Goods    improperly    marked 

or  loaded. 

482.  Neglect  of  the  shipper   to 

disclose   contents   or 
value. 

483.  Loss   from   mistake   or   in- 

termeddling on  the  part 
of  the  shipper. 

484.  Negligence  of  the  carrier. 

IV.  Where  the  Loss  ob  Injuby  is 
Caused  by  the  Inhebent 
Nature  of  the  Goods. 


485. 
486. 


The  exception. 
Animate  freight. 


V.  Cabbying  of  Live  Stock. 

487.  The  exception  applies. 

488.  Michigan  rule. 

489.  The   duty   of   the   common 

carrier. 

490.  Statutes   of   United    States 

with  reference  to  duties 
of  the  carrier. 

491.  The   shipper   must  deal 

fairly  with  the  carrier. 

VI.  When  the  Loss  ob  Injuby  is 

Occasioned   feom   the   Ex- 
eecise   of   Public    Authob- 

ITY. 

492.  The  reasons  for  the  excep- 

tion. 


§  466,  Liability  of  the  common  carrier. — Common  carriers 
belonging  to  the  extraordinary  class  of  bailments,  and  though 
many  of  the  reasons  in  which  their  extraordinary  liability  had  its 
origin  have  long  since  ceased  to  exist,  nevertheless  the  extra- 
ordinary liability  still  continues  with  but  slight  variance. 


§    467.]  LIMITATIONS   UPON   LIABILITY.  461 

The  common-law  liability  of  the  common  carrier  of  goods  is 
that  of  an  insurer  against  loss  or  injury  of  the  property  while 
in  his  custody  or  under  his  control  as  a  common  carrier,  ex- 
cept (1)  where  the  loss  or  injury  is  caused  by  the  act  of  God; 
or  (2)  by  the  public  enemy.  To  these  exceptions,  which  have 
long  been  exceptions  by  the  common  law,  the  more  modem 
adjudications  have  added  three  others:  (3)  when  the  loss  or  in- 
jury is  the  result  of  the  acts  of  the  shipper;  or  (4)  caused  by 
the  inherent  nature  of  the  goods;  or  (5)  from  public  authority. 

§  467.  Reasons  for  extraordinary  liability. — The  reasons  for 
the  extraordinary  liability  were  discussed  by  Lord  Holt  in  the 
celebrated  case  of  Coggs  v.  Barnard  ^  in  this  language :  * '  The 
law  charges  this  person  (the  carrier),  thus  intrusted  to  carry 
goods,  against  all  events  but  acts  of  God  and  of  the  enemies 
of  the  king.  For,  though  the  force  be  never  so  great,  as  if 
an  irresistible  multitude  of  people  should  rob  him,  nevertheless 
he  is  chargeable.  And  this  is  a  politic  establishment,  contrived 
by  the  policy  of  the  law  for  the  safety  of  all  persons,  the  neces- 
sity of  whose  affairs  oblige  them  to  trust  these  sorts  of  persons, 
that  they  may  be  safe  in  their  ways  of  dealing;  for  else  these 
carriers  might  have  an  opportunity  of  undoing  all  persons  that 
had  any  dealings  with  them,  by  combining  with  thieves,  etc. ; 
and  yet  doing  it  in  such  a  clandestine  manner  as  would  not  be 
possible  to  be  discovered.  And  this  is  the  reason  the  law  is 
founded  upon  in  that  point." 

Mr.  Chief  Justice  Best,  in  Riley  v.  Eorne,^  commenting  upon 
the  foundation  of  the  rule  in  its  bearing  upon  the  commercial 
interests  of  the  country,  said:  "When  goods  are  delivered  to  a 
carrier,  they  are  usually  no  longer  under  the  eye  of  the  owner; 
he  seldom  follows  or  sends  any  servants  with  them  to  the  place 
of  their  destination.  If  they  should  be  lost  or  injured  by  the 
grossest  negligence  of  the  carrier  or  his  servants,  or  stolen  by 
them,  or  by  thieves  in  collusion  with  them,  the  owner  would 
be  unable  to  prove  either  of  these  causes  of  loss.  His  witnesses 
must  be  the  carrier's  servants;  and  they,  knowing  that  they 
could  not  be  contradicted,  would  excuse  their  masters  and 
themselves.  To  give  due  security  to  property,  the  law  has  added 
to  that  responsibility  of  a  carrier,  which  immediately  arises  out 
of  his  contract  to  carry  for  a  reward  namely,  that  of  taking  all 

1 2  Lord  Raymond,  909.  a  5  Bing.  217. 


462  CARRIERS.  [§  468. 

reasonable  care  of  it,  the  responsibility  of  an  insurer.  From 
his  liability  as  an  insurer,  the  carrier  is  only  to  be  relieved  by 
two  things,  both  so  well  known  to  all  the  country  when  they 
happen,  that  no  person  would  be  so  rash  as  to  attempt  to  prove 
that  they  had  happened  when  they  had  not, — namely,  the  act  of 
God  and  the  king's  enemies," 

Judge  Story,  discussing  the  liability,  says :  ^  "In  questions, 
therefore,  as  to  the  liability  of  a  carrier,  the  point  ordinarily 
is  not  so  much  whether  he  has  been  guilty  of  negligence  or  not, 
as  whether  the  loss  comes  within  either  of  the  excepted  cases. 
Not  but  that,  if  the  carrier  is  actually  guilty  of  negligence,  he 
wnll  be  liable  for  a  loss,  which  otherwise  might  be  deemed  a  loss 
by  an  inevitable  casualty." 

§  468.  Inanimate  and  animate  freight. — From  the  state- 
ment of  the  exceptions  or  limitations  to  the  liability  of  the 
common  carrier  it  will  be  noticed  that  the  extent  of  the  liability 
and  the  application  of  the  rules  of  limitation  must  be  largely 
affected  by  the  kind  of  goods  that  are  being  transported.  If 
the  freight  is  inanimate  it  can  be,  and  is,  subjected  to  the  entire 
control  of  the  carrier;  he  can  lay  it  away  in  his  vehicle  where 
he  chooses,  and  to  his  will  and  desire  in  this  respect  there  is  no 
opposition  or  restraint.  A  load  of  grain  in  sacks  may  be  piled 
into  one  of  the  carrier's  cars  or  vehicles,  and  if  well  loaded,  and 
there  are  no  mishaps  in  the  transit,  the  goods  at  the  end  of  the 
journey  will  be  found  in  the  same  place  and  in  the  same  con- 
dition as  when  they  started  in  transit;  but  if  the  freight  is  ani- 
mate, very  different  results  may  be  looked  for.  If,  for  example, 
it  be  a  load  of  horses  or  cattle  stowed  into  a  car,  they  become 
nervous  and  discontented,  and  often  injure  each  other.  The 
very  fact  that  they  possess  life  is  an  added  element  of  uncer- 
tainty in  the  safety  of  their  transportation,  and  so  much  does 
this  change  the  nature  of  the  liability  that  some  of  the  courts 
have  held  that  live  animals  are  not  goods  and  merchandise,  and 
that  the  carrier's  liability  in  transporting  them  is  not  the  extra- 
ordinary common-law  liability;  that  this  extraordinary  liability 
that  attaches  in  case  of  inanimate  freight  does  not  apply  in  case 
of  animate  freight.  Upon  this,  however,  there  is  a  diversity  of 
opinion,  the  weight  of  authority  holding,  as  we  shall  see,  that 

3  Story  on  Bailm.,  sec.  492. 


§    469.]  LIMITATIONS   UPON   LIABILITY.  463 

the  liability  is  the  extraordinary  liability,  limited  only  by  the 
inherent  nature  of  the  freight.* 

Section  I. 
When  the  Loss  or  injury  is  Caused  by  the  Act  of  God. 

§  469.  The  act  of  God. — It  is  sometimes  very  difficult  to  de- 
termine what  is  and  what  is  not  the  act  of  God.  There  has 
been  a  great  deal  of  discussion  among  the  courts  and  authors 
with  reference  to  this  subject.  The  definition  that  is  perhaps  as 
often  used  as  any  is  that  of  Anderson.  An  act  of  God  is  defined 
to  be  "such  inevitable  accident  as  cannot  be  prevented  by  hu- 
man care,  skill  or  foresight,  but  results  from  natural  causes, 
such  as  lightning  tempest,  floods  and  inundations — something 
superhuman,  or  something  in  opposition  to  the  act  of  man. ' '  ^ 

The  supreme  court  of  the  United  States,  in  The  Majestic,^ 
have  quoted  with  approval  Chancellor  Kent:  "  ^The  act  of 
God,'  said  Chancellor  Kent,  'means  inevitable  accident,  without 
the  intervention  of  man  and  public  enemies;'  and  again,  that 
'perils  of  the  sea  denote  natural  accidents  peculiar  to  that  ele- 
ment, which  do  not  happen  by  the  intervention  of  man,  nor 
are  to  be  prevented  by  human  prudence.  It  is  a  loss  happen- 
ing in  spite  of  all  human  effort  and  sagacity.'  The  words  'perils 
of  the  sea'  may,  indeed,  have  grown  to  have  a  broader  significa- 
tion than  'the  act  of  God,'  but  that  is  unimportant  here."  And 
further,  from  Judge  Parsons:  "the  'act  of  God'  is  limited,  as 
we  conceive,  to  causes  in  which  no  man  has  any  agency  what- 
ever; because  it  was  intended  never  to  raise,  in  the  ease  of  the 

4  "The    liability    of    a    common  railroad  company,  for   an  agreed 

carrier  of  goods  is  that  of  an  in-  compensation,  undertakes  to  carry 

surer,  and  in  cases  of  loss  no  ex-  goods  and  deliver  them  at  destina- 

cuse  avails  such  carrier  unless  oc-  tion,    it   is    responsible    for   their 

casioned  by  the  act  of  God  or  pub-  loss  irrespective  of  liability  as  a 

lie    enemy."      Central    R.    Co.    v.  common  carrier.     Trimble  v.  New 

Lippman,   110   Ga.   665.     Common  York  Co.,  57  N.  Y.  Sup.  437. 

carriers  of  freight  are  liable  for  s  McHenry    v.    Philadelphia    R. 

any  damage  not  caused  by  the  act  Co.,  4  Harr.   (Del.)   449;   Chicago, 

of  God  or  the  public  enemy,  and  etc.  R.  Co.  v.  Sawyer,  69  111.  289: 

are  insurers.   Grand  Rapids  &  Ind.  And.  Die.  23;  Express  Co.  v.  Jack- 

R.  Co.  V.  Huntley,   38  Mich.   537;  son,  92  Tenn.  326. 

Reed    v.    Wilmington    Steamboat  e  166  U.  S.  375. 
Co.,  40  Atl.  955   (Del.).     Where  a 


464  CARRIERS.  [§  470. 

common  carrier,  the  dangerous  and  difficult  question  whether 
he  actually  had  any  agency  in  causing  the  loss;  for,  if  this  were 
possible,  he  should  be  held."  And  so  an  unprecedented  flood 
by  reason  of  which  the  baggage  of  a  passenger  was  swept  away 
was  held  to  be  an  act  of  God.'^  And  in  Long  v.  Pennsylvania 
R.  Co.^  it  was  held  that  the  Johnstown  flood  in  1889,  which 
was  of  such  extraordinary  character  that  a  party  was  not  bound 
to  anticipate  or  provide  against  it,  and  which  came  with  such 
suddenness  and  power  that  escape  from  it  was  impossible,  was 
an  inevitable  accident  or  act  of  God  in  respect  to  the  loss  of 
baggage  on  a  railroad  train  where  the  utmost  care  was  exercised 
by  the  agents  and  employees  of  the  carrier  to  escape  the  dangers 
of  which  they  had  knowledge  or  reasonable  grounds  of  appre- 
hension. 

§  470.  Does  not  always  excuse  the  carrier  from  all  care. — 
While  the  act  of  God,  or  such  inevitable  accident  as  is  defined 
to  be  the  act  of  God,  will  exempt  the  common  carrier  from 
the  extraordinary  liability  that  the  common  law  imposes  upon 
him  in  case  of  loss  or  injury  of  the  property,  it  cannot  be  said 
to  be  an  absolute  excuse  for  all  care  or  diligence  upon  the  part 
of  the  carrier.  If  the  goods  are  entirely  destroyed  by  reason 
of  the  act  of  God,  and  the  destruction  was  occasioned  where 
there  was  no  possibility  of  escaping  the  result,  or  any  portion 
of  it,  it  might  be  said  that  the  defense  would  be  a  complete 
defense  to  an  action  against  the  carrier;  but  if  the  destruction 
is  not  total,  then,  while  the  carrier  may  be  excused  from  the 
same  liability,  the  law  imposes  upon  him  the  duty  of  using  or- 
dinary diligence  in  preserving  and  caring  for  the  property  that 
is  not  entirely  destroyed  and  is  still  in  his  custody.  As  where 
a  shipper  shipped  with  the  plaintiff  a  carload  of  hogs,  and  the 
train  upon  which  the  car  was  being  drawn  was  blocked  by  a 
snow  storm,  and  detained  upon  the  track  for  some  time,  during 
which  time  sixteen  of  the  hogs  died,  it  was  held  that  while 
the  train  was  undoubtedly  detained  by  reason  of  the  act  of 

TWald  V.  Pittsburg  R.  Co.,  162  pie   v.   Utica   Cement   Co.,   22   111. 

111.  545,  35  L.  R.  A.  356.  App.    159;    Bowman    v.    Teall,    23 

8  147  Pa.  St.  343,  14  L.  R.  A.  741.  Wend.  306;   Parsons  v.  Hardy,  14 

A  storm  or  freshet,  to  constitute  Wend.  215;   Harris  v.  Rand,  4  N. 

an  act  of  Providence,  need  not  be  H.  259;  Crosbey  v.  Fitch,  12  Conn, 

unprecedented,  if  it  is  unusual,  ex-  410. 
traordinary  and  unexpected.    Peo- 


§    471.]  LIMITxiTIONS   UPON   LIABILITY.  465 

God,  notwithslanding  this  fact  it  was  the  duty  of  the  carrier 
to  exercise  ordinary  care  in  taking  care  of  the  property  under 
all  circumstances,*  and  if  he  failed  to  do  so,  was  liable  for  the 
loss  resulting  therefrom. 

§  471.  The  act  of  God  must  be  the  conclusive  and  proximate 
cause. — If  the  loss  or  injury  was  the  result  in  the  slightest  de- 
gree of  any  human  action,  or  any  admixture  of  human  means 
with  that  which  is  determined  to  be  the  act  of  God,  in  such 
case  the  carrier  could  not  be  excused  but  would  be  held  to  the 
extraordinary  liability.  If  the  carrier  has  been  guilty  of  any 
previous  negligence  or  misconduct  which  would  bring  the  prop- 
erty in  contact  with  the  destructive  force  of  the  actus  Dei,  or 
unnecessarily  expose  it  thereto,  he  would  not  be  exempt  from 
liability;  the  loss  or  injury  must  have  been  occasioned  by  the 
direct  and  exclusive  cause, — the  act  of  God, — in  order  to  exempt 
the  carrier.  Where  the  plaintiff  brought  suit  against  the  railroad 
company  alleging  the  loss  of  his  trunk  upon  a  train  destroyed 
in  the  Johnstown  flood,  while  it  was  held  that  the  Johnstown 
flood  was  unquestionably  an  act  of  God  and  that  the  trunk  was 
destroyed  by  reason  of  it,  still,  the  court  further  held  that  if  the 
trunk  had  gone  upon  the  same  train  with  the  passenger,  the 
plaintiff,  and  the  train  it  should  have  been  put  upon,  it  would 
have  passed  where  the  flood  occurred  before  it  happened,  and 
thus  the  property  would  not  have  been  destroyed;  holding, 
therefore,  that  the  loss  was  not  entirely  the  result  of  the  act  of 
God,  but  was  probably  caused  by  human  acts.^°  And  in  a  case 
where  a  car  was  blown  over  by  a  furious  wind,  and  the  goods 

9  Black  V.  Chicago,  B.  &  Q.  R.  R.  Co.,  130  Iowa,  123,  106  N.  W. 
Co.,  30  Neb.  197,  46  N.  W.  428;  498,  5  L.  R.  A.  (N.  S.)  882.  In 
Smith  V.  Railroad  Co.,  91  Ala.  455.      this  case  nearly  every  important 

10  Wald  V.  Railroad  Co.,  162  111.  decision  bearing  on  the  question  is 
545;  M.  C.  R.  Co.  v.  Curtis,  80  111.  cited  in  briefs  and  opinions.  Ala- 
324;  Read  v.  Spaulding,  30  N.  Y.  bama,  etc.  R.  Co.  v.  Quarles  (Ala. 
630,  86  Am.  Dec.  426;  McGraw  v.  1906),  40  So.  120,  5  L.  R.  A.  (N.  S.) 
Baltimore  &  Ohio  R.  Co.,  18  W.  867;  Central  Ga.  R.  Co.  v.  Hall, 
Va.  361,  41  Am.  Rep.  696;  Bibbs,  124  Ga.  322,  4  Am.  &  Eng.  Ann. 
etc.  Co.  V.  Atchison,  etc.  R.  Co.,  94  Cases,  128-135,  and  notes.  Where 
Minn.  269,  69  L.  R.  A.  509.  Where  by  delay  the  carrier  brought  the 
goods  overtaken  and  damaged  by  goods  into  the  path  of  the  flood,  he 
an  act  of  God  on  account  of  cannot  defend  that  the  goods  were 
carrier's  negligent  delay  in  ship-  destroyed  by  the  act  of  God.  Elam 
ping,  carrier  liable.  Question  fully  v.  St.  Louis,  etc.  R.  Co..  117  Mo. 
briefed  in  69  L.  R.  A.  509;  Green  App.  453,  93  S.  W.  851. 
Wheeler  Shoe  Co.  v.  Chicago,  etc 

30 


466  CARRIERS.  [§   472. 

in  the  ear  afterwards  and  almost  immediately  destroyed  by 
fire,  it  was  held  that  the  jury  might  properly  find  that  the  fail- 
ure of  the  carrier  to  rescue  the  goods  from  the  car  which  had 
been  overturned  by  the  force  of  the  wind  before  they  were  con- 
sumed by  fire  was  not  negligence,  where  the  evidence  shows  that 
the  wind  was  so  strong  as  to  render  it  almost  impossible  for  men 
to  stand  or  walk,  while  the  air  was  so  full  of  dust  and  flying 
material  that  scarcely  anything  could  be  seen,  and  that  the  fire 
succeeded  the  overturning  of  the  car  almost  instantaneously,  so 
that  even  a  messenger  within  the  car  escaped  with  great  diffi- 
culty.^^ 

§  472.  What  will  and  what  will  not  excuse — Summary. — So 
it  may  be  said  that  the  carrier  will  be  excused  beyond  question 
where  the  loss  was  occasioned  solely  by  the  act  of  God;  such  as 
sudden  inundation,  lightning,  fire  by  lightning,  landslides,  tor- 
nadoes, or  wind  storms,  earthquakes,  snow  storms  and  rain 
storms,  but  that  he  will  not  be  excused  where  the  fire  is  not 
caused  by  lightning  but  originated  from  some  human  agency  or 
negligence,  nor  will  he  be  excused  even  where  the  fire  is  blown 
along  by  a  wind  which  sometimes  arises  and  drives  it  upon  the 
property  which  it  destroyed;  nor  by  explosion  of  steam  boilers, 
although  it  is  necessary  that  steam  boilers  shall  be  used  for  pro- 
pelling the  boats  and  drawing  the  vehicles  of  the  carrier ;  nor  by 
collisions,  even  though  the  collision  may  have  happened  because 
of  dense  fog,  or  by  reason  of  a  tempest,  or  by  severe  storm ;  the 
theory  being  that  wherever  human  activity  has  a  part  in  that 

11  Blythe  et  al.  v.  Denver,  etc.  the  act  of  God."   Dibble  v.  Morgan, 

R.  Co.,  15  Colo.  333,  11  L.  R.  A.  1  Woods,   405.     "The  act  of  God 

615;  Davis  v.  Wabash,  etc.  R.  Co.,  which  will  excuse  a  common  car- 

89    Mo.    349;     Chidister    v.    Con-  rier   must  be  the   proximate   and 

solidated  Ditch  Co.,   59   Cal.   202.  not  the  remote  cause  of  the  loss." 

Where  human  agency  intervenes.  King   v.   Shepherd,   3    Story,   356. 

the  act  of  God  cannot  be  sustained  "The  act  of  God  must  not  only  be 

as  a  defense;  as  where  a  steamer  proximate  but  the   sole   cause  of 

was  sunk  by  running  into  a  mast  the  loss."     Wolf  v.  Am.  Ex.  Co., 

of  a  sloop  sunk  a  day  or  two  pre-  43  Mo.  421.     See  notes  to  Hull  v. 

viously;    the    squall    which    sunk  Chicago  R.  Co.,  41  Minn.  510,  5  L. 

the  sloop  was  too  remote.   Merritt  R.  A.  587;   Insurance  Co.  v.  Eas- 

V.  Earle,  29  N.  Y.  115.     "Any  act  ton,  73  Tex.  167,  3  L.  R.  A.  424; 

or  omission  on  the  part  of  the  car-  Hartwell  v.  Northern  Pac.  Ex.  Co., 

rier  contributing  to  the  loss  takes  5  Dak.  463,  3  L.  R.  A.  442;   also 

away  the  protection  of  the  defense  notes,  11  L.  R.  A.  615. 
that   the  loss  was  occasioned  by 


§    474.]  LIMITATIONS   UPON   LIABILITY.  467 

"which  causes  the  destruction  or  injury;  the  carrier  would  be 
liable.  As,  for  example,  where  the  fire  is  blown  by  the  wind,  or 
where  the  boiler  explodes  upon  the  steamboat,  or  where  the  colli- 
sion takes  place  in  a  fog,  the  boat  or  the  vehicle  is  managed  and 
under  the  care  of  human  agency,  and  the  loss  or  injury  cannot  be 
said  to  be  caused  by  the  act  of  God.^^ 

§  473.  Burden  of  proof. — If  the  carrier  relies  for  his  defense 
upon  this  excuse,  the  burden  of  proof  is  upon  him  to  make  out 
his  defense,  having  the  affirmative  of  that  issue.^^ 

Section  II. 

By  the  Public  Enemy. 

§  474.  The  public  enemy. — The  public  enemy,  or,  as  it  is 
called  in  the  English  cases,  the  king's  enemies,  may  be  defined 
to  be  enemies  with  whom  the  nation  is  at  war,  including  also 
robbers  or  pirates  upon  the  high  seas.  From  this  definition 
it  will  be  understood  that  it  does  not  include  insurgents  or  those 
in  rebellion  with  the  state  or  nation,  nor  strikers,  robbers  or 
marauding  bands  of  thieves,  but  rather  presupposes  that  they 
must  be  the  soldiers  or  armies  of  one  or  more  of  the  govern- 
ments among  the  powers,  as  a  nation  or  independent  govern- 
ment. Eevolution,  however,  may  grow  to  such  proportions  that 
it  dominates  the  government  and  country  where  it  exists,  that 
is,  becomes  the  ruling  power,  as  did  the  revolutionists  of  the 
American  colonies,  and,  as  such,  force  recognition  by  other 
nations.  The  revolution  of  the  states  which  brought  on  the 
war  of  the  rebellion  forced  the  courts  of  our  own  country  to 
recognize  their  captures  and  destruction  of  property  as  coming 
within  the  exception,  although  such  recognition  was  conceded 
with  great  reluctance.  In  the  case  of  Mauran  v.  Insurance 
Go.,^'^  the  question  was  very  ably  discussed  by  learned  counsel  in 
their  briefs  printed  with  the  case,  where  authorities  are  cited, 
and  by  Justice  Nelson,  who  rendered  the  opinion  of  the  court. 
In  the  opinion  is  found  this  language:     "Now,  applying  these 

12  Forward   v.   Pittard,   1   T.   R.  tion   Co.,    27   Me.   123;    Nashville, 

33;  Hollister  v.  Nowlen,  19  Wend.  etc.   R.   Co.   v.   Jackson,   6   Heisk. 

234;    Blythe    v.    Railroad    Co.,    15  271;  Nashville,  etc.  R.  Co.  v.  King, 

Colo.  333;  Hale  v.  N.  J.  S.  N.  Co.,  6  Heisk.  269. 

15  Conn.  539;  The  Northern  B?lle,  is  Story  on  Bailm.,  sec.  492. 

9  Wall.   526;    Plaisted   v.  Naviga-  ^i^  6  Wall.  1. 


468  CARRIERS.  [§  474. 

principles  to  the  case  before  us,  it  will  be  vseen  that  the  question 
is  not  whether  this  so-called  Confederate  government,  under 
whose  authority  the  capture  was  made,  was  a  lawful  govern- 
ment, but  whether  or  not  it  was  a  government  in  fact,  that  is, 
one  in  the  possession  of  the  supreme  power  of  the  district  of 
country  over  which  its  jurisdiction  extended?  "We  agree  that 
all  the  proceedings  of  these  eleven  states,  either  severally  or  in 
conjunction,  by  means  of  which  the  existing  governments  were 
overthrown  and  new  governments  erected  in  their  stead,  were 
wholly  illegal  and  void,  and  that  they  remained  after  the  at- 
tempted separation  and  change  of  government,  in  judgment  of 
law,  as  completely  under  all  their  constitutional  obligations  as 
before.  The  constitution  of  the  United  States,  which  is  the 
fundamental  law  of  each  and  all  of  them,  not  only  afforded  no 
countenance  or  authority  for  these  proceedings,  but  they  were, 
in  every  part  of  them,  in  express  disregard  and  violation  of  it. 
Still,  it  cannot  be  denied  but  that  by  the  use  of  these  unlawful 
and  unconstitutional  means  a  government,  in  fact,  was  erected 
greater  in  territory  than  many  of  the  old  governments  in  Europe, 
complete  in  the  organization  of  all  its  parts,  containing  within 
its  limits  more  than  eleven  millions  of  people,  and  of  sufficient 
resources,  in  men  and  money,  to  carry  on  a  civil  war  of  unex- 
ampled dimensions;  and  during  all  which  time  the  exercise  of 
many  belligerent  rights  were  either  conceded  to  it,  or  were  ac- 
quiesced in  by  the  supreme  government,  such  as  the  treatment  of 
captives,  both  on  land  and  sea,  as  prisoners  of  war;  the  exchange 
of  prisoners;  their  vessels  captured  recognized  as  prizes  of  war, 
and  dealt  with  accordingly ;  their  property  seized  on  land  referred 
to  the  judicial  tribunals  for  adjudication ;  their  ports  blockaded, 
and  the  blockade  maintained  by  a  suitable  force,  and  duly  noti- 
fied to  neutral  powers  the  same  as  in  open  and  public  war. 

"We  do  not  inquire  whether  these  were  rights  conceded  to 
the  enemy  by  the  laws  of  war  among  civilized  nations,  or  were 
dictated  by  humanity  to  mitigate  the  vindictive  passions  grow- 
ing out  of  a  civil  conflict.  "We  refer  to  the  conduct  of  the  war 
as  a  matter  of  fact  for  the  purpose  of  showing  that  the  so-called 
Confederate  States  were  in  the  possession  of  many  of  the  highest 
attributes  of  government,  sufficiently  so  to  be  regarded  as  the 
ruling  or  supreme  power  of  the  country,  and  hence  captures 
under  its  commission  were  among  those  excepted  out  of  the 


§    476.]  LIMITATIONS   UPON   LIABILITY.  469 

policy  by  the  warranty  of  the  insured. ' '  ^-  Robbers  or  pirates 
upon  the  high  seas  are  adjudged  to  be  the  public  enemy  upon 
the  theory  that  they  are  the  enemies  of  all  mankind,  and  so 
the  enemies  of  every  nation. 

§  475.  The  diligence  required  on  the  part  of  the  carrier. — 
In  this,  as  in  the  case  where  the  act  of  God  is  claimed  as  an 
exemption  from  liability,  the  common  carrier  is  held  to  at 
least  ordinary  diligence  in  avoiding  the  loss  of  or  injury  to  the 
property;  and  where,  by  negligence  upon  his  part,  there  is  a 
delay  which  would  result  in  the  destruction  or  injury  of  the 
property,  even  though  it  were  by  the  public  enemy,  or  where 
by  his  negligence  there  was  a  deviation  in  the  route  which 
would  carry  the  property  unnecessarily  into  a  country  invested 
by  the  armies  of  the  enemy,  and  the  property  was  destroyed 
or  injured  by  them;  in  all  such  cases  the  common  carrier  would 
be  liable,  and  could  not  successfully  invoke  the  defense  that 
the  injury  or  destruction  was  the  result  of  the  acts  of  the  public 
enemy.  And  the  same  rule  would  apply  in  cases  where  the 
property  was  injured  or  destroyed  by  pirates  upon  the  high  seas. 
It  is,  in  other  words,  the  duty  of  the  public  carrier  to  exercise 
at  least  ordinary  diligence;  such  diligence  as  an  ordinarily 
prudent  man,  under  just  such  circumstances,  would  use  with 
reference  to  his  own  affairs. 

§  476.  Diligence,  even  though  the  property  is  injured  or  de- 
stroyed after  the  event  has  occurred. — And  in  this  as  in  the 
cases  already  discussed  under  the  act  of  God,  it  is  the  duty  of  the 
carrier  to  exercise  ordinary  diligence  in  caring  for  the  property 
that  is  injured,  though  the  injury  occurred  by  reason  of  acts  of 
the  public  enemy.  He  must  do  all  that  he  can  to  take  care  of  the 
property  that  is  saved  from  destruction,  and  even  though  it  is 
injured,  he  must  care  for  all  that  would  be  of  value  to  the 

15  The  Prize  Cases,  2  Black,  635;  tion,  which  becomes  magnified  and 

Thorington  v.   Smith,   8  Wall.   1;  matured   into   war   in   the   legiti- 

Bland  v.  Adams  Exp.  Co.,  1  Duv.  mate    sense,    and   when   so   char- 

(Ky.)   232.     Chief  Justice  Robert-  acterized  the  parties  are  belliger- 

son,  in  the  opinion,  uses  this  Ian-  ents    and    entitled    to    belligerent 

guage;    "War    is    either    interna-  rights."     Frank  v.  Keith,  2  Bush, 

tional  or  civil,  foreign  or  domestic.  123;    Southern    Exp.    Co.    v.    Wo- 

Insurrection,   however,   violent  or  mack,  1  Heisk.  256;  Fiefleld  v.  In- 

however  formidable,   is   not   war.  surance  Co.,  47  Pa.  St.  166. 
Civil  war  is  preceded  by  insurrec- 


470  CARRIERS.  [§   477. 

shipper  or  his  consignee;  if  by  the  use  of  such  ordinary  dili- 
gence valuable  property  could  be  saved  or  restored  after  the  in- 
jury or  destruction  has  occurred,  it  is  the  duty  of  the  carrier  to 
exercise  that  diligence,  and  it  would  be  no  defense  for  the 
carrier  to  show  that,  even  though  in  the  particular  case  he  failed 
to  exercise  diligence,  the  property  would  have  been  destroyed 
on  account  of  other  like  calamities  that  certainly  would  have 
overtaken  it.  !As,  for  example,  if  the  property,  on  account  of 
unnecessary  deviation  from  the  usual  route,  was  injured  or  de- 
stroyed even  by  the  act  of  God  or  the  public  enemy,  it  would 
be  no  defense  for  the  carrier  to  show  that  if  the  route  had  not 
been  deviated,  and  the  property  had  been  carried  upon  the  usual 
course,  it  would  probably  have  suffered  the  same  injury  or  de- 
struction. The  law,  in  other  words,  will  not  speculate  and  ac- 
cept the  theories  and  conclusions  of  men;  in  such  a  case  the 
actual  injury  or  destruction  is  the  question  that  is  to  be  ad- 
judicated upon  and  adjusted,  and  where  it  has  taken  place 
under  such  circumstances  the  carrier  must  answer  to  the  ex- 
traordinary liability  that  is  required  in  his  case.^^  Should  it  be 
a  ease,  however,  where  there  could  be  no  question  but  that  the 
property  would  have  been  destroyed  had  the  carrier  pursued  the 
usual  and  regular  course,  and  the  deviation  was  dictated  by 
ordinary  judgment  and  prudence,  but  resulted  in  disaster  by 
reason  of  the  act  of  God  or  other  reason  which  would  ordinarily 
excuse  the  carrier,  in  such  ease  it  seems  the  carrier  would  be 
excused.^'' 

§  477.  Strikers,  rioters  aud  robbers  not  the  public  enemy. — 
Strikers,  rioters  and  robbers  are  not  deemed  to  be  the  public 
enemy,  and  so  their  action  will  not  relieve  the  carrier  from 
the  extraordinary  liability  which  attaches  to  a  common  carrier 
of  goods,  except  so  far  as  to  excuse  deviation  and  delay.  This 
seemingly  severe  rule  as  to  the  liability  of  the  carrier  seems  to 
have  had  its  origin  in  the  very  early  opinion  that  the  carrier 
should  be  held  to  meet  such  force  with  force ;  if  attacked  by  rob- 

16  This  was  the  discussion  in  the  which  one  must  take  to  avoid  re- 
case  of  Davis  V.  Garrett,  6  Bing.  sponsibility  is  that  which  a  person 
716.  of  ordinary  prudence  and  caution 

IT  Story   on   Bailm.,   sees.    413a,  would    use    if    his    own    interests 

413?),   413c,   ilZd.     The   Nitro-gly-  were  to  be  affected  and  the  whole 

cerine  Case,  15  Wall.  524,  held  the  risk  were  his  own. 
measure  of  care  against  accident 


§    478.]  LIMITATIONS  UPON   LIABILITY.  471 

bers,  that  he  should  have  at  his  call  sufficient  force  to  meet  and 
repel  the  attack.^^  More  recently  this  rule,  which  seems  to  have 
generally  prevailed  in  the  earlier  times,  has  been  abandoned  by 
the  courts  and  the  liability  rested  upon  a  different  theory, 
namely,  that  of  a  probability  of  collusion  between  the  carrier  and 
third  parties  to  defraud  the  shipper,  unless  deterred  by  severe 
rules  and  penalties,  which  seemed  to  be  demanded  by  public 
policy. 

Lord  Mansfield  in  commenting  upon  this  subject  said:  "If 
an  armed  force  came  to  rob  the  carrier  of  the  goods,  he  is 
liable;  and  a  reason  is  given  in  the  books  which  is  a  bad  one, 
namely,  that  he  ought  to  have  sufficient  force  to  repel  it.  But 
that  would  be  impossible  in  some  cases;  as,  for  instance,  in  the 
riots  of  1780  (the  Lord  George  Gordon  riots).  The  true  reason 
is  for  fear  it  may  give  room  for  collusion ;  that  the  carrier  may 
contrive  to  be  robbed  on  purpose  and  share  the  spoils."  And 
so  it  would  seem  that  this  rests  upon  the  theory  that  seems  to 
have  originated  the  extraordinary  liability  itself,  namely,  to 
meet  the  possibility  of  the  collusion  of  the  carrier  with  robbers, 
rioters,  strikers  or  thieves. 

Section  III. 

Where  the  Loss  or  Injury  is  the  Result  op  the  Acts  of  the 

Shipper. 

§  478.  Reasons  of  tlie  liability  of  the  carrier. — The  limitation 
stated  in  the  third  general  heading  is  one  of  the  more  recently 
added  exceptions  to  the  rule  governing  the  liability  of  the 
carrier.  The  early  rule  of  the  common  law  excused  the  carrier 
from  liability  only  in  cases  where  the  loss  or  injury  was  the  re- 
sult of  an  act  of  God  or  the  public  enemy ;  in  all  other  cases  he 
was  an  insurer.  But  to  say  that  the  carrier  should  not  be  ex- 
cused when  the  injury  or  destruction  of  the  property  was  the 
direct  result  of  the  shipper's  own  acts,  or  because  of  his  own 
fraud,  would  be  a  travesty  upon  justice  which  the  good 
judgment  of  men  and  that  sense  of  right  which  all  possess, 
would  condemn,  and  condemning  would  demand  a  change  so  as 
to  better  comport  with  right  and  justice.  So,  growing  out  of 
the  experience  and  well-balanced  judgment  of  men,  there  has 

18  Coggs  V.  Bernard,  2  Lord  Raymond,  909. 


472  CARRIERS.  [§■  479. 

been  added  to  this  nile  the  just  exception  now  under  discussion: 
so  when  the  loss  or  injury  is  the  result  of  the  acts  of  the  shipper, 
the  carrier  will  be  excused  from  the  extraordinary  liability. 
Among  the  well-defined  reasons  for  placing  the  carrier  under 
the  extraordinary  liability  amounting  to  an  insurer  of  the  prop- 
erty, is  that  he  has  the  entire  possession,  custody  and  control  of 
it  throughout  the  entire  time  of  transporting  it.  It  therefore 
follows,  that  because  he  must  bear  this  extraordinary  liability,  he 
has  the  right  to  insist  that  his  custody  and  control  shall  be  abso- 
lute and  without  interference ;  even  by  the  owner  or  the  shipper. 
Then,  too,  as  we  shall  see,  the  shipper  before  placing  the  goods 
in  the  custody  of  the  carrier  might  by  some  act  of  bis  own  have 
impeded  the  facilities  of  the  carrier,  or  in  fact  been  the  cause  of 
his  inability  to  transport  the  property  with  that  safety  that  is  re- 
quired, and  for  such  act  upon  the  part  of  the  shipper  common 
justice  and  right  would  demand  that  the  shipper  and  not  the 
carrier  should  be  liable. 

§  479.  Contributory  negligence. — As  we  have  already  seen, 
a  very  high  degree  of  diligence  in  caring  for  and  transporting 
the  property  is  demanded  of  the  carrier;  even  to  the  extent  that 
in  case  of  loss  of  the  property  his  liability  is  held  to  be  that  of  an 
insurer.  Where,  however,  there  are  duties  to  be  performed 
on  the  part  of  the  shipper  and  the  loss  of  the  property  is  oc- 
casioned by  his  failure  to  perform  these  duties,  or  where  any 
omission  or  negligent  act  of  the  shipper  is  a  partial  cause  of  the 
loss  or  injury,  in  connection  with  the  duties  to  be  performed  by 
the  carrier,  it  may  be  said  that  he  has  contributed  to  the  loss  or 
injury,  and  in  such  case,  being  himself  guilty  of  contributory 
negligence,  he  would  not  be  permitted  to  recover  from  the  com- 
mon carrier. 

Where  the  owner  of  cotton  placed  it  upon  a  platform  for 
shipment,  not  leaving  any  watch,  the  cotton  being  destroyed 
by  fire  negligently  set  by  the  railroad  company,  it  was  held 
in  an  action  against  the  railroad  company  for  the  cotton  de- 
stroyed that  it  was  not  contributory  negligence  per  se  for  the 
shipper  to  place  the  cotton  on  the  platform.^^  This  rule  is  un- 
doubtedly based  upon  the  theory  that  good  faith  and  reason- 
able diligence  from  the  owner  in  his  dealings  with  the  carrier 
are  required.     And  so,  where  the  owner  of  property  accompa- 

i»  St.  Louis,  A.  &  T.  Ry.  Co.  v.  Fire  Ass'n  of  Phlla.,  55  Ark.  163. 


§    481.]  LIMITATIONS   UPON   LLVBILITY.  473 

nied  it  for  the  purpose  of  taking  care  of  it,  and  the  property 
was  lost  and  destroyed  through  negligence  of  the  owner  in 
failing  properly  to  care  for  it,  it  was  held  that  he  was  not  en- 
titled to  recover  in  an  action  against  the  carrier.  The  court, 
in  delivering  the  opinion,  said:  "It  is  the  right  of  the  owner 
to  commit  his  property  to  the  exclusive  custody  of  the  carrier, 
and  the  latter  has  no  right  to  decline  to  receive  it ;  but  if  the 
owner  sees  fit  to  take  upon  himself  any  duty  connected  with 
the  carriage,  he  does  not  lose  his  position  as  an  independent 
party  to  the  contract,  and  is  bound  to  discharge  it  with  fidel- 
ity, "^o 

§  480.  Improperly  marking  goods  by  the  consignor. — It  is 
the  duty  of  the  shipper  of  goods  to  see  that  they  are  properly 
marked  to  their  destination  in  order  that  the  consignee  of  the 
property  and  the  place  where  the  shipment  is  to  be  made  may 
be  properly  entered  upon  the  books  of  the  carrier.  It  has  been 
held  to  be  the  duty  of  the  owner  of  goods  to  have  them  properly 
marked  and  present  them  to  the  carrier  or  his  servants  that  they 
may  be  entered  in  the  books  of  the  carrier,  and  if  he  neglects  to 
do  this,  and  there  is  a  misdelivery  and  loss  in  consequence  with- 
out any  fault  on  the  part  of  the  carrier,  the  carrier  will  not 
Tdc  held  liable  for  the  loss.-^  But  where  the  goods  were  incor- 
rectly addressed,  and  the  carrier's  agent  at  the  time  he  received 
them  had  knowledge  of  the  error,  it  was  held  that  the  liability  of 
the  carrier  could  not  be  defeated  upon  the  ground  of  contribu- 
tory negligence  of  the  owner,  that  the  carrier,  having  knowledge 
of  the  error,  should  have  acted  upon  that  knowledge.-- 

§  481.  Goods  improperly  packed  or  loaded. — The  duty  of 
packing  the  goods  for  shipment,  as,  for  example,  in  the  case  of 

20  Wilson  V.  Hamilton,  4  Ohio  So.  Ex.  Co.  v.  Kaufman,  59  Tenn. 
St.  722.  (12  Heisk.)  161.    And  where  fruit 

21  The  Huntress,  12  Fed.  Cas.  trees  were  missent  by  the  carrier, 
No.  6,914.  the    plaintiff   having   marked    the 

22  O'Rourke  v.  C,  B.  &  Q.  R.  Co.,  goods  luka,  Iowa,  without  desig- 
44  Iowa,  526;  Forsythe  v.  Walker,  nating  Tama  county,  there  being 
9  Pa.  St.  148.  An  express  package  two  towns  named  luka  in  Keokuk 
was  misdirected  by  the  consign-  county,  it  was  held  that  the  ship- 
ors,  in  consequence  of  which  it  per  was  guilty  of  contributory  neg- 
was  delivered  at  a  wrong  place,  ligence  in  marking  the  goods, 
and  without  default  of  the  com-  Conger  v.  Chicago  &  N.  W.  R.  Co., 
pany  was  destroyed  by  fire.    Held,  24  Wis.  157. 

that  the  company  was  not  liable. 


474  CARRIERS.  [§    481. 

crockery'  or  glassware,  or  other  property  which  requires  proper 
packing,  usually  devolves  upon  the  shipper.  As  we  have  already 
seen,  the  carrier  company  may  demand  that  the  goods  shall  be 
properly  packed  and  ready  for  shipment  before  it  is  compelled 
to  receive  them  for  transportation.  It  would  therefore  follow 
that  where  the  goods  were  improperly  packed,  and  for  this  reason 
injury  or  loss  resulted,  the  carrier  could  not  be  held  liable.  So, 
it  is  often  the  duty  of  the  shipper  to  load  the  goods  into  the 
vehicle  of  the  carrier,  and  thus  put  them  in  readiness  for  ship- 
ment. And  where  the  shipper  loaded  upon  a  platform  car  heavy 
machinery^  and  insufficiently  blocked  the  wheels,  by  reason  of 
which  the  machinery,  while  being  transported  by  the  defendant 
carrier,  broke  from  its  fastenings  without  any  fault  of  the  de- 
fendant in  the  running  of  the  train,  or  in  maintenance  of  the 
track,  and  was  injured,  it  was  held  that  the  carrier  was  not  liable 
therefor,  although  one  of  its  serv^ants,  the  yardmaster  and  for- 
warder of  freight  cars,  saw  the  fastenings  and  noticed  that  they 
were  insufficient.  The  court  say  in  the  opinion:  "Had  the 
fastenings  been  sufficient  the  accident  would  not  have  happened. 
Is  the  defendant  chargeable  with  the  consequences  of  that  insuffi- 
ciency? We  think  not,  in  the  sense  in  which  the  county  court 
seems  to  have  regarded  it.  The  undertaking  and  duty  of  the 
defendant  was  to  transport  and  deliver  safely  against  all  con- 
tingencies except  the  act  of  God,  public  enemies,  and  acts 
of  the  parties  shipping  the  property.  It  was  the  insurer  against 
everything  but  those ;  but  as  against  them,  it  was  bound  only  to 
the  exercise  of  reasonable  care  and  diligence.  In  this  case  it 
undertook  to  transport  the  articles  safely,  in  the  condition  in 
which  the  plaintiff  had  packed  them,  insuring  against  every- 
thing but  that  condition  and  its  consequences,  and  bound  to  use 
reasonable  care  and  diligence  against  injury  resulting  from  that 
condition."  ^^  And  so  reason  and  justice  dictate  that  if  boxes  in 
w^hich  goods  are  packed  by  the  shipper  for  transportation  should 
be  broken  upon  the  journey,  and  loss  is  thereby  occasioned,  and 
without  any  fault  on  the  part  of  the  carrier  the  goods  are  de- 
stroyed, the  carrier  could  not  be  held  liable. 2* 

23  Ross  V.  Troy  &  B.  R.  Co.,  49  defect,  broke  under  the  weight  of 

Vt.  364.  the    hogshead    and    the    contents 

21  "The  owner  of  a  hogshead  of  thereof  were  lost.     Held,  that  the 

molasses  furnished  a  conamon  car-  owner  could  not  maintain  an  ac- 

rier  with  skids  wherewith  to  un-  tion   against    the    carrier   for    the 

load   the   same   from   his   wagon;  loss."      Loveland    v.    Burke,    120 

but  the  skids,  owing  to  a  latent  Mass.  139,  21  Am.  Rep.  507. 


§    482.]  LIMITATIONS   UPON   LIABILITY.  475 

§  482.  Neglect  of  the  shipper  to  disclose  contents  or  value. — 

The  neglect  of  the  shipper  to  disclose  to  the  common  carrier 
the  value  of  the  package  delivered  for  shipment  may  in  some 
cases  be  considered  as  fraudulent  upon  the  part  of  the  shipper, 
and  at  least  as  not  comporting  with  that  reasonable  rule  which 
the  law  imposes  upon  the  bailor  that  he  shall  deal  fairly  with 
the  bailee.  Cases  have  often  been  presented  to  the  courts  where 
valuable  articles,  and  often  money,  have  been  stowed  away  in 
packages  that  were  delivered  for  transportation,  without  appris- 
ing the  carrier  of  the  value  of  the  package;  the  carrier,  thus  be- 
ing misled,  failing  to  exercise  the  high  degree  of  diligence  that  he 
would  have  exercised  had  he  known  the  contents  of  the  package. 
In  all  such  cases,  if  it  can  be  shown  that  the  owner  of  the  prop- 
erty fraudulently  secreted  the  valuable  articles  and  intentionally 
kept  the  fact  from  the  carrier,  the  courts  have  excused  the 
carrier  from  the  extraordinary  liability.  And,  indeed,  the  auth- 
orities have  gone  so  far  as  to  hold  that  the  intention  to  impose 
upon  the  carrier  is  not  material;  that  it  is  enough  if  the  con- 
duct of  the  shipper  resulted  in  an  imposition  upon  the  carrier. 
Where  a  party  forwarded  jewelry  worth  a  large  amount  of 
money  in  a  box  by  express,  taking  a  receipt  which  disclosed  on  its 
face  that  the  company  should  not  be  held  liable  for  any  loss  or 
damage  of  any  box,  package  or  thing  over  $50,  unless  the  just 
and  true  value  thereof  was  therein  stated,  and  failed  to  state  the 
value,  and  in  consequence  thereof  was  charged  a  less  premium 
than  otherwise  would  have  been  required,  it  was  held  that  this 
conduct  showed  a  designed  suppression  of  the  value  of  the 
goods,  and  that  it  was  unfair  on  the  part  of  the  shipper  of  the 
goods,  and  that  the  effect  of  it  was  to  relieve  the  carrier  from 
his  liability  as  insurer ;  that  had  the  true  value  of  the  goods  been 
disclosed,  there  would  have  been  an  extra  charge,  and  increased 
precaution  would  have  been  taken  for  the  safety  of  the  goods, 
and  that  the  goods  on  account  of  this  would  have  been  saved ; 
that  the  consignor  by  his  conduct  elected  to  take  the  risk  of  the 
loss  rather  than  to  subject  the  plaintiff  to  the  enhanced  charges 
that  would  have  been  made  had  the  value  of  the  property  been 
disclosed. ^^ 

The  rule  in  this  respect  is  thus  laid  down  by  the  supreme 
court  of  New  York:  "If  the  carrier  has  given  general  notice 
that  he  will  not  be  liable  over  a  certain  amount  unless  the  value 

25  Oppenheimer  &  Co.  v.  U.   S.    Exp.  Co.,  69  111.  62. 


476  CARRIERS.  [§  482. 

is  made  known  to  him  at  the  time  of  delivery  and  a  premium 
for  insurance  paid,  such  notice,  if  brought  home  to  the  knowl- 
edge of  the  owner  (and  courts  and  juries  are  liberal  in  infer- 
ring such  knowledge  from  the  publication  of  the  notice),  is  as 
effectual  in  qualifying  the  acceptance  of  the  goods  as  a  special 
agreement,  and  the  owner,  at  his  peril,  must  disclose  the  value 
and  pay  the  premium.  The  carrier  in  such  case  is  not  bound 
to  make  the  inquiry,  and  if  the  owner  omits  to  make  known 
the  value,  and  does  not  therefore  pay  the  premium  at  the  time 
of  delivery,  it  is  considered  as  dealing  unfairly  with  the  carrier, 
and  he  is  liable  only  to  the  amount  mentioned  in  his  notice,  or 
not  at  all,  according  to  the  terms  of  his  notice. ' '  ^*' 

And  where  valuable  goods  were  delivered  to  the  carrier,  an 
express  company,  for  carriage,  the  shipper  remaining  silent  as 
to  their  real  value,  the  carrier  giving  him  a  receipt  stating 
among  other  things  that  if  the  value  of  the  property  described 
is  not  stated  by  the  shipper,  the  holder  will  not  demand  of  the 
company  a  sum  exceeding  $50  for  the  loss  or  detention  or  dam- 
age of  the  property,  it  was  held  that  a  disclosure  of  the  value 
of  the  goods  was  a  condition  precedent  to  the  attaching  of  any 
liability  to  the  carrier,  or  merely  ordinary  neglect  unaccom- 
panied with  any  misfeasance  or  wilful  act;  and  that  if  goods 
of  greater  value  are  so  delivered,  silence  on  the  part  of  the  ship- 
per as  to  the  real  value,  although  there  is  no  inquiry  and  no  ar- 
tifice to  conceal  the  value  or  to  deceive,  is  a  legal  fraud  which 
discharges  the  carrier  from  liability  or  ordinary  negligence  for 
an  amount  exceeding  the  limitation  made  by  the  carrier.^^ 

"And  where  a  shipper  delivered  to  a  carrier  for  transporta- 
tion a  bundle  having  the  appearance  of  bedding  only,  but  which 
in  fact  contained  inside  of  the  bedding  valuable  clothing,  such 
as  a  silk  dress,  a  brocha  shawl  and  furs  of  the  value  of  $200  or 
more,  which  fact  was  not  disclosed,  and  thereby  shipped  them  at 
a  low  rate  of  freight,  it  was  held  that  this  was  such  an  imposi- 
tion and  fraud  practiced  upon  the  carrier  as  to  release  him  from 


26  Orange  Co.  Bank  v.  Brown,  9  466;  Hollister  v.  Nowlen,  19  Wend. 

Wend.    115;    Angell    on    Carriers,  244. 

sec.  245;  Farmers'  Bank  v.  Cham-  27  Magnin  v.  Dinsmore,  70  N.  Y. 

plain  Trans.  Co.,  23  Vt.  186;  West-  410;  Hayes  v.  Wells,  Fargo  &  Co., 

ern  Trans.  Co.  v.  Newhall,  24  111.  23  Cal.  185. 


§    484.]  LIMITATIONS   UPON    LIABILITY.  477 

any  liability  for  loss,  except  as  to  what  might  properly  be  termed 
bedding. ' '  ^s  And  where  a  package  containing  articles  of  a  brit- 
tle nature  is  delivered  to  an  express  company  to  be  transported 
from  one  point  to  another,  and  the  company  is  not  informed 
what  the  package  contained,  so  that  a  degree  of  care  may  be 
used  proportionate  to  its  fragile  character,  the  company  will  not 
be  held  liable  to  the  extent  of  common  carriers. 

§  483,  Loss  from  mistake  or  intermeddling  on  the  part  of  the 
shipper. — As  has  often  been  said,  the  liability  of  the  carrier  is 
based  largely  upon  the  fact  of  his  possession  and  entire  control 
of  the  goods  shipped;  and  so,  if  the  shipper  intermeddles  or  is 
guilty  of  any  unwarranted  interference  which  occasions  loss  of 
or  injury  to  the  property,  he  must  suffer  for  his  own  acts,  and 
not  the  carrier.  And  so  where  an  owner  of  a  horse  shipped  the 
horse  by  placing  him  in  a  car  and  insisted  that  the  door  should 
be  left  open,  and  would  not  allow  the  servants  of  the  carrier  to 
shut  the  door  of  the  car,  saying  that  he  would  take  care  of  the 
horse  himself,  and  the  horse,  falling  out  through  the  door  of  the 
car,  was  injured,  it  was  held  that  the  common  carrier  was  not 
liable  for  the  injury  to  the  horse;  it  was  occasioned  by  the  im- 
proper and  unwarrantable  interference  of  the  plaintiff. ^^  And  in 
a  case  where  a  horse  was  injured  by  jumping  through  an  open 
window  in  the  car  which  was  left  open  by  the  owner,  it  was  held 
negligence  upon  the  part  of  the  owner,  and  recovery  against  the 
common  carrier  was  not  allowed.^" 

§  484.  Negligence  of  the  carrier. — While  for  these  reasons 
the  common  carrier  is  excused  from  the  extraordinary  liability, 
the  rule  obtains  that  was  discussed  under  the  other  limitations, 
namely:  where  the  injury  or  loss  was  occasioned  by  reason  of 
the  act  of  God  or  the  public  enemy,  the  carrier  must  at  all  times 
exercise  at  least  ordinary  diligence  in  caring  for  and  transport- 
ing the  injured  property,  if  any,  safely  for  the  consignee  to  the 
destination  of  the  shipment. 

28  Chicago,  etc.  R.  Co.  v.  Shea,  for  the  rule  and  cites  numerous 

66  111.  471;  Bottum  v.  Charleston,  cases. 

etc.  R.  Co.,  72  S.  C.  375,  5  Am.  &  29  Roderick  v.  Railroad  Co.,  7  W. 

Eng.  Ann.  Cas.  118,  and  see  notes  Va.  54. 

and  cases  cited  at  pp.  120-122.   At  30  Hutchinson   v.   C,    St.   P.,   M. 

page   121   of  5  Am.   &   Eng.  Ann.  &  O.  R.  Co.,  37  Minn.  524;  Congar 

Cas.  the  editor  gives  the  reason  v.  Railroad  Co.,  24  Wis.  157. 


478  CARRIERS.  [§    4:86. 

Section  IV. 

Where   the  Loss  or   Injury  is   Caused   by   the   Inherent 
Nature  of  the  Goods. 

§  485.  The  exception. — This  subject  has  been  so  often  re- 
ferred to  in  previous  sections  of  this  volume  that  it  hardly  seems 
necessary  to  discuss  it  here.  It  can  be  very  readily  seen  that  if 
the  loss  of  the  property  is  the  result  of  the  inherent  nature  of 
the  goods  or  of  the  property  being  shipped,  and  is  not  the  result 
•of  any  fault  of  the  carrier,  it  would  be  at  least  unjust  to  hold 
the  carrier  to  an  extraordinary  liability,  namely,  as  an  insurer 
for  the  delivery  of  such  property.  As,  for  example,  where  the 
goods  are  perishable,''^  and  because  of  unforeseen  delay  that 
could  not  be  prevented  by  the  carrier  the  goods  have  spoiled  or 
become  damaged,  it  would  be  unjust  to  hold  the  carrier  in  such 
<3ase.  Also  in  the  case  of  liquids  that  evaporate.  When  the 
freight  is  inanimate,  the  loss  or  damage  falling  within  this  ex- 
ception is  such  that  no  diligence  however  great  on  the  part  of  the 
carrier  could  avert  it,  but  is  entirely  attributable  to  the  nature 
of  the  goods. 

§  486.  Animate  freight. — ^In  connection  with  this  exception 
belongs  the  discussion  of  its  application  to  the  carriage  of  ani- 
mate freight.  If  the  freight  has  life  and  activity  it  must  of 
necessity  introduce  a  new  element  into  the  question  of  the  lia- 
bility of  the  carrier.  The  fact  that  he  is  able  by  himself  or  his 
servants  to  absolutely  control  the  freight,  as  he  can  if  it  is  in- 
animate, materially  adds  to  the  reasonableness  of  the  common- 
law  rule  that  held  the  common  carrier  to  the  extraordinary  lia- 
bility as  an  insurer.  There  is  no  danger  from  the  action  of  the 
freight  itself.  If  it  is  inanimate  it  remains  where  it  was  packed 
or  loaded  or  stored;  it  is  only  a  matter  of  handling  and  trans- 
porting and  delivering  it.  But  where  the  freight  is  animate  the 
carrier  meets  a  very  different  condition.  The  freight  is  active, 
and  added  to  the  care  of  the  property  merely  as  freight,  is  the 
care  that  is  required  because  of  its  life  and  activity. 


31  American  Ex.  Co.  V.  Smith,  33  them    further;     the    carrier    sold 

Ohio  St.  511.    Peaches  were  ship-  them   for   the   best   price   obtain- 

ped  by  the  carrier.    On  accoimt  of  able.    It  was  held  that  he  was  not 

a  bridge  being  washed  away  by  a  liable,  and  discharged  his  duty  in 

freshet  it  was  impossible  to  carry  selling  the  property. 


§    487.]  LIMITATIONS   UPON   LIABILITY,  479 

Section  V. 
Carrying  op  Live  Stock. 

§  487.  The  exception  applies. — Good  conscience  and  fair  deal- 
ing demand  that  the  rigorous  rule  of  the  common-law  liability 
be  modified  in  respect  to  the  carrying  of  live  stock ;  and  so  it  has 
been  held  without  dissent  that  where  animals  are  injured  or  lost 
while  in  transit,  and  the  damage  or  loss  is  not  in  any  way  at- 
tributable to  the  fault  of  the  carrier,  but  is  the  result  of  the  in- 
herent nature,  vice,  condition  or  disease  of  the  animals,  the  car- 
rier should  be  excused  from  the  extraordinary  liability,  and  held 
answerable  only  for  ordinary  diligence  which  he  must  exercise 
in  protecting  the  shipper  so  far  as  possible  from  loss. 

The  rule  has  been  stated  in  a  recent  case  as  follows:  "While 
a  common  carrier  of  goods,  who  transports  live  stock,  is,  as  to 
the  latter  property,  a  common  carrier,  he  is  exempt  from  lia- 
bility for  loss  or  injury  caused  by  the  nature  and  propensities 
of  the  animals,  and  which  cannot  be  prevented  by  foresight, 
vigilance  and  care. ' '  ^^ 

It  has  also  been  held  in  a  well-considered  case :  '  *  In  the  trans- 
portation of  such  stock,  in  the  absence  of  negligence,  the  carrier 
is  relieved  from  responsibility  for  such  injuries  as  occur  in  con- 
sequence of  the  vitality  of  the  freight.  He  does  not  absolutely 
warrant  live  freight  against  the  consequences  of  its  own  vitality. 
Animals  may  injure  or  destroy  themselves  or  each  other;  they 
may  die  from  fright  or  from  starvation  because  they  refuse  to 
eat,  or  they  may  die  from  heat  or  cold.  It  all  such  eases  the  car- 
rier is  relieved  from  responsibility  if  he  can  show  that  he  has 
provided  all  suitable  means  of  transportation  and  exercised  that 
degree  of  care  which  the  nature  of  the  property  requires. ' '  ^^ 

Where  plaintiff  shipped  over  the  defendant's  road  a  span  of 
horses  that  had  been  driven  together,  and  had  been  previously 
kind  and  weU  disposed,  and  it  was  found  on  arrival  at  their  des- 
tination that  one  of  them  had  been  very  badly  kicked,  although 
they  had  been  tied  in  opposite  corners  of  the  car,  it  was  said  by 
the  Massachusetts  court  in  its  opinion:  "According  to  the  es- 

S2  Cooper  v.  Raleigh,  etc.  R.  Co.,  road  Co.,  14  N.  Y.  570;  Bissell  v. 

110  Ga.  659.  N.  Y.  Cent.  R.  Co.,  25  N.  Y.  442; 

33  Cragin  et  al.  v.  N.  Y.  Cent.  R.  Smith   v.  M.   H.   &   N.   R.   Co.,   12 

Co.,  51  N.  Y.  61,  63;  Claris  v.  Rail-  Allen,  531. 


480  CARRIERS.  [§  487. 

tablished  rule  as  to  the  liability  of  a  common  carrier,  he  is  under- 
stood to  guarantee  that  (with  the  well-known  exception  of  the 
act  of  God  and  of  public  enemies)  the  goods  intrusted  to  him 
shall  seasonably  reach  their  destination,  and  that  they  shall  re- 
ceive no  injury  from  the  manner  in  which  their  transportation 
is  accomplished.  But  he  is  not,  necessarily  and  under  all  cir- 
cumstances, responsible  for  the  condition  in  which  they  may  be 
found  upon  their  arrival.  The  ordinary  and  natural  decay  of 
fruit,  vegetables  and  other  perishable  articles,  the  fermentation, 
evaporation  or  unavoidable  leakage  of  liquids,  the  spontaneous 
combustion  of  some  kinds  of  goods,  are  matters  to  which  the  im- 
plied obligation  of  the  carrier,  as  an  insurer,  does  not  extend. 
He  is  liable  for  all  accidents  and  mismanagement  incident  to  the 
transportation  and  to  the  means  and  appliances  by  which  it  is 
effected ;  but  not  for  injuries  produced  by,  or  resulting  from,  the 
inherent  defects  or  essential  qualities  of  the  articles  which  he 
undertakes  to  transport.  The  extent  of  his  duty  in  this  respect 
is  to  take  all  reasonable  care  and  use  all  proper  precautions  to 
prevent  such  injuries,  or  to  diminish  their  effect  as  far  as  he  can ; 
but  his  liability,  in  such  cases,  is  by  no  means  that  of  an  insurer. 
.  .  .  They  would  be  unconditionally  liable  for  all  injuries 
occasioned  by  the  improper  construction  or  unsafe  condition  of 
the  carriage  in  which  the  horses  were  conveyed,  or  by  its  im- 
proper position  in  the  train,  or  by  the  want  of  reasonable  equip- 
ment, or  by  any  mismanagement,  or  want  of  due  care,  or  by  any 
other  accident  (not  within  the  well-known  exception)  affecting 
either  the  train  generally  or  that  particular  carriage.  But  the 
transportation  of  horses  and  other  domestic  animals  is  not  sub- 
ject to  precisely  the  same  rules  as  that  of  packages  and  inani- 
mate chattels.  Living  animals  have  excitabilities  and  volitions 
of  their  own  which  greatly  increase  the  risks  and  difficulties  of 
management.  They  are  carried  in  a  mode  entirely  opposed  to 
their  instincts  and  habits;  they  may  be  made  uncontrollable  by 
fright,  or,  notwithstanding  every  precaution,  may  destroy  them- 
selves in  attempting  to  break  loose,  or  may  kill  each  other.  "^* 
And  so  it  has  been  held,  "where  horses  or  other  animals  were 
being  transported  by  water,  and  in  consequence  of  a  storm  broke 
down  the  partitions  between  them,  and  by  kicking  each  other 

34  Evans  v.  Fitchburg  R.  Co.,  Ill  Mass.  142,  143;    Story  on  Bailm., 
sec.  576. 


§    488.]  LIMITATIONS  UPON   LIABILITY.  481 

t 

some  of  them  were  killed,  that  the  carrier  would  not  be  held  re- 
sponsible. ' '  ^^ 

The  United  States  supreme  court  have  held  that  "although 
a  railroad  company  is  not  a  common  carrier  of  live  animals  in 
the  same  sense  that  it  is  a  carrier  of  goods,  its  responsibilities 
being  in  many  respects  different,  yet,  when  it  undertakes  gener- 
ally to  carry  such  freight,  it  assumes  under  similar  conditions 
the  same  obligations  so  far  as  the  route  is  concerned  over  which 
the  freight  is  to  be  carried."  ^®  And,  indeed,  it  may  be  said  that 
there  is  great  unanimity  in  the  decisions  of  the  states  upon  this 
question.  The  Michigan  court,  however,  has  adopted  a  different 
rule. 

§  488.  Michigan  rule. — The  Michigan  court  has  steadily 

held  that,  as  to  the  carriage  of  live  stock,  railroad  companies  are 
not  common  carriers  and  can  only  be  held  to  the  exercise  of  or- 
dinary diligence.  This  doctrine  was  very  ably  discussed  in  the 
case  of  Michigan  Southern  &  N.  Ind.  B.  R.  Co.  v.  McDonough.^'' 
The  court  say :  ' '  The  transportation  of  cattle  and  live  stock  by 
common  carriers  by  land  was  unknown  to  the  common  law  when 
the  duties  and  responsibilities  of  common  carriers  were  fixed, 
making  them  insurers  against  all  losses  and  injuries  not  arising 
from  the  act  of  God  or  of  the  public  enemies.  These  responsi- 
bilities and  duties  were  fixed  with  reference  to  kinds  of  property 
involving,  in  their  transportation,  much  fewer  risks,  and  of  quite 
a  different  kind,  from  those  which  are  incident  to  the  transporta- 
tion of  live  stock  by  railroads.  Animals  have  wants  of  their  own 
to  be  supplied ;  and  this  is  a  mode  of  conveyance  at  which,  from 
their  nature  and  habits,  most  animals  instinctively  revolt;  and 
cattle  especially,  crowded  in  a  dense  mass,  frightened  by  the 
noise  of  the  engine,  the  rattling,  jolting  and  frequent  concus- 
sions of  the  cars,  in  their  frenzy  injure  each  other  by  trampling, 
plunging,  goring,  or  throwing  down;  and  frequently,  on  long 
routes,  their  strength  exhausted  by  hunger  and  thirst,  fatigue 

35  Lawrence  v.  Aberdein,  5  B.  &  carrier  with  respect  to  other  prop- 
Aid.  107;  Angell  on  Carriers,  sec.  erty,  except  that  they  are  not  in- 
214a.  surers  against   losses   or  injuries 

36  Myrrick  v.  Mich.  Cent.  R.  Co.,  resulting  from  the  inherent  nature, 
107  U.  S.  102,  107.    In  Cash  v.  Wa-  propensities  and  habits  of  the  ani- 
bash  R.  Co.,  81  Mo.  App.  109,  it  mals  themselves."    McCoy  v.  K.  & 
was    said:     "The    duties    and    re-  D.  R.  Co.,  44  Iowa,  424. 
sponsibilities  of  a  carrier  of  live  -"  21  Mich.  165. 

animals   are   those   of  a   common 

31 


■^82  CARRIERS.  [§   489. 

and  fright,  the  weak  easily  fall  and  are  trampled  upon,  and  un- 
less helped  up  must  soon  die.  .  .  .  It  is  a  mode  of  transpor- 
tation which,  but  for  its  necessity,  would  be  gross  cruelty  and 
indictable  as  such.  The  risk  may  be  greatly  lessened  by  care 
and  vigilance,  by  feeding  and  watering  at  proper  intervals,  by 
getting  up  those  that  are  down,  and  otherwise.  But  this  im- 
poses a  degree  of  care  and  an  amount  of  labor  so  different  from 
what  is  required  in  reference  to  other  kinds  of  property,  that  I 
do  not  think  this  kind  of  property  falls  within  the  reasons  upon 
which  the  common-law  liability  of  common  carriers  was  fixed.^* 
.  .  .  Upon  sound  principle  and  upon  the  English  authorities 
above  cited,  I  think  it  clear  the  transportation  of  cattle  by  rail- 
road does  not  come  within  the  reasons  of  the  law  applicable  to 
common  carriers,  so  far  as  relates  to  the  care  of  the  property  and 
responsibility  for  its  loss  or  injury. ' '  ^^ 

While  the  Michigan  court  is  not  sustained  by  the  authorities 
generally,  and  seems  to  stand  alone  upon  the  general  question 
of  liability,  a  careful  analysis  of  the  holdings  of  the  court  will 
show  that  they  are  in  harmony  with  most  of  the  courts  of  the 
states  upon  all  other  questions  touching  the  duties  and  liabilities 
of  the  carrier. 

;§  489.  The  duty  of  the  common  carrier. — The  duty  of  the 
common  carrier  as  to  the  shipment  of  live  stock  does  not  differ 
very  materially  in  many  particulars  from  the  duty  of  the  com- 
mon carrier  as  to  the  shipment  of  inanimate  freight.  The  car- 
rier must  furnish  for  the  shipper  suitable  stockyards  at  their 
stational  point,  and  what  are  suitable  stockyards  is  a  question 

38  The  Michigan  court  cites  ss  Lake  Shore  v.  Perkins,  25 
M'Manus  v.  Lancashire  Ry.  Co.,  2  Mich.  329;  American  Ex.  Co.  v. 
Hurl.  &  Norman,  702;  Palmer  v.  Phillips,  29  Mich.  515;  Mich. 
Grand  Junction  Ry.  Co.,  4  M.  &  W.  Cent.  R.  Co.  v.  Hale,  6  Mich.  243; 
758,  quoting  from  Parke,  Baron:  Great  Western  R.  Co.  v.  Hawkins, 
"Does  the  rule  as  to  negligence  18  Mich.  427;  Smith  v.  Mich.  Cent, 
apply  to  live  animals,  as  horses?  R.  Co.,  100  Mich.  148;  Heller  v. 
Of  course  if  they  were  stolen  it  Chicago,  etc.  R.  Co.,  109  Mich,  53, 
would,  but  is  it  so  where  they  are  where  the  court  held  "that  a  rail- 
delivered  although  hurt  or  dam-  road  company  in  carrying  live 
aged?  If  misdelivered,  the  carrier  stock  is  not  chargeable  with  the 
would  be  liable,  but  they  would  common-law  liability  of  a  common 
not  be  liable  for  a  mere  accident  carrier,  but  is  only  bound  to  trans- 
to  a  live  animal  supposing  the  port  with  ordinary  prudence,  skill 
carriage  to  be  safe  and  good  and  and  care,  and  with  reasonable  dis- 
properly  conducted."  patch." 


§    489.]  LIMITATIONS   UPON   LIABILITY.  483 

for  the  jnry,  depending,  of  course,  upon  the  country  surround- 
ing the  station,  and  the  extent  of  the  business  of  shipping  stock.*" 
They  must  also  furnish  suitable  facilities  for  loading  stock  into 
cars,  and  it  should  be  remembered  that  the  same  rule  attaches 
in  this  class  of  freight  as  that  which  obtains  where  the  freight 
was  inanimate,  namely,  that  when  the  stock  is  delivered  into  the 
custody  and  control  of  the  carrier  by  delivering  it  for  immediate 
shipment  at  their  stockyards',  it  is  from  that  time  in  transit.  It 
is  the  duty  of  the  company  to  furnish  suitable  cars  for  feeding 
the  stock.  This  is  a  matter  that  has  often  been  before  the 
courts.*^  There  must  be  cars  suited  to  the  particular  season  of 
the  year,  the  climate  of  the  country,  as  far  as  may  be,  and  it  has 
been  held  that  they  must  be  free  from  infectious  or  contagious 
diseases  that  the  stock  would  be  liable  to  contract  by  shipment  in 
them.*-  And  where  stock  contracted  a  disease  by  reason  of  ship- 
ment in  the  cars  of  the  company,  the  company  was  held  liable  for 
the  damage ;  in  other  words,  it  was  held  that  this  was  negligence 
upon  the  part  of  the  carrier.  It  is  also  the  duty  of  the  company 
to  properly  feed,  water  and  care  for  the  stock  where  there  is  no 
contract  exempting  them  from  that  liability.  This,  however,  is  a 
matter  that  is  largely  governed  by  special  contract.*^  But  even 
where  the  shipper  by  contract  takes  upon  himself  the  duty  to 

40  Covington  Stockyards  Co.  v.  transported  in  them,  renders  the 
Keith,  139  U.  S.  128;  Gulf  R.  Co.  v.  railroad  company  liable  for  dam- 
Trawick,  80  Tex.  370;  Tex.  &  Pac.  ages."  In  Betts  v.  Chicago,  etc. 
R.  Co.  V.  Painbrough,  55  S.  W.  182.  R.  Co.,  92  la.  343,  25  L.  R.  A.  248, 

41  Coupeland  v.  Housatonic  R.  it  was  held,  "a  carrier  is  liable  for 
Co.,  61  Conn.  531,  15  L.  R.  A.  534,  injuries  to  live  stock  carried  by  it 
held,  "the  carrier  is  not  an  in-  if  it  fails  to  provide  cars  reason- 
surer  of  live  stock,  but  must  pro-  ably  safe  to  transport  it." 

vide   suitable  means  for   its   con-  43  in    Missouri    Pac.    R.    Co.    v. 

veyance    and   use    all    reasonable  Pagin,  72  Tex.  127,  2  L.  R.  A.  75,  it 

diligence  and  forethought  in  the  was  held,  "a  carrier  has  the  duty 

varying  circumstances  arising  in  to   feed   and   water   stock   during 

the  business."     Bells  v.   Chicago,  transportation,  and  cannot  trans- 

etc.  R.  Co.,  92  la.  342;  Great  West-  fer  it  to  the  shipper  by  a  custom 

em,   etc.   R.    Co.   v.   Hawkins,   18  requiring  him  to  go  along  on  the 

Mich.  427;  Pratt  v.  Ogdensburg  R.  same  train  with  the  stock  to  feed 

Co.,  102  Mass.  557;   Trace  v.  Pa.  and  water  them  at  his  own  risk 

R.  Co.,  26  Pa.  Super.  Ct.  466.  and  expense."    III.  Cent.  R.  Co.  v. 

42  In  111.  Cent.  R.  Co.  v.  Harris,  Adams,  42  111.  474;  Toledo,  W.  & 
184  111.  57,  48  L.  R.  A.  175,  it  was  W.  R.  Co.  v.  Thompson,  71  111.  734. 
held,  "the  communication  of  Texas  See  note  to  Missouri  Pac.  R.  Co. 
fever  by  infected  cars,   to  cattle  v.  Pagin,  2  L.  R.  A.  75. 


484  CiUiRiERs.  [§■  489. 

look  after  the  feeding  and  watering  of  the  stock,  it  is  incumbent 
upon  the  carrier  to  furnish  suitable  places  and  means  for  feed- 
ing and  watering.  The  running  of  the  trains  and  the  transport- 
ing of  the  stock  is  always  under  the  supervision  and  control  of 
the  carrier.  And  it  is  the  carrier's  duty  to  stop  his  trains  at 
suitable  places,  and  facilitate  the  unloading,  yarding  and  caring 
for  the  stock,  giving  suitable  time  for  feeding  and  watering,  and 
loading  them  again  into  the  cars.  And  where  by  contract  it  was 
expressly  agreed  that  the  company  was  not  to  be  charged  with 
the  duty  of  feeding  or  watering  the  animals  that  were  being 
shipped,  but  was  to  afford  the  shipper  proper  facilities  for  doing 
so,  the  company  was  held  liable  for  damage  occasioned  by  reason 
of  carrying  the  stock  forty  miles  beyond  the  station  where  they 
were  to  be  fed,  and  keeping  them  in  the  cars  for  two  days  with- 
out food  or  v\'ater  or  care,  beyond  where  they  were  to  have  been 
delivered.** 

And  where  a  railroad  company  accepts  horses  for  shipment 
over  its  road  under  a  contract  which  provides  that  they  are  to  be 
loaded,  unloaded,  fed,  watered  and  cared  for  while  in  the  cars 
by  the  shipper  or  owner,  and  at  his  expense  and  risk,  it  was 
held  that  the  company,  as  a  bailee  for  hire,  having  control  of 
the  cars  in  which  the  horses  are  placed,  is  bound  at  least  to  fur- 
nish the  shipper  an  opportunity  to  give  the  animals  the  care 
which  they  require.  The  court  in  its  opinion  say:  "The  pro- 
vision in  the  contract  that  the  stock  is  to  be  loaded,  unloaded, 
fed,  watered  and  otherwise  cared  for  while  in  the  cars  by  the 
shipper  or  owner  does  not  mean  that  the  duty  is  to  be  performed 
by  the  shipper  while  the  train  is  in  motion,  and  without  being 
afforded  an  opportunity  by  the  company  to  perform  the  duty. 
If  the  provision  should  be  given  any  force,  it  creates  a  very  fair 
inference  that  the  company  will  afford  the  shipper  the  oppor- 
tunity to  perform  the  duty  which  it  has  seen  fit  to  provide  shall 
rest  upon  him. ' '  *® 

It  is  also  the  duty  of  the  carrier  to  furnish  facilities  for  un- 
loading the  stock  at  its  destination  and  for  keeping  them  until 
delivered  to  the  consignee.**    And  so  where  the  carrier  allowed 

44  Bryant  v.  S.  W.  Ry.  Co.,  68  46  Chesapeake  R.  Co.  v.  Ameri- 
Ga.  805.  can  Exchange  Bank,  92  Va.  495; 

45  Smith  V.  Railway  Co.,  100  Gulf,  etc.  Co.  v.  York,  2  Tex.  App. 
Mich.  148,  156,  45  Am.  &  Eng.  R.  Civ.  Cases,  sec.  812. 

Cas.  348. 


§    491. J  LIMITATIONS  UPON   LIABILITY.  485 

its  stock  pens  to  become  in  a  condition  unfit  to  hold  the  stock  on 
account  of  the  fences  being  rotten  and  insecure,  the  carrier  was 
held  liable  for  cattle  that  escaped  from  them.'*'^  All  these  duties 
and  obligations  are  laid  upon  the  carrier  because  of  the  rule  of 
law  that  demands  that  he  shall  at  all  times  be  diligent  and  do 
whatever  is  necessary  to  be  done  in  order  to  safely  transport  the 
stock  which  he  is  employed  to  carry,  and  deliver  it  to  the  con- 
signee. As,  for  example,  it  has  been  held  that  it  was  the  duty  of 
the  carrier  to  prevent  the  injuiy  of  animals  because  of  excessive 
heat  when  it  can  be  reasonably  done.'*^ 

§  490.  Statutes  of  United  States  with  reference  to  duties  of 
the  carrier. — Statutes  have  been  passed  both  by  the  United 
States  congress  and  the  legislatures  of  the  states  regulating  ■'.he 
duties  of  common  carriers,  especially  their  duties  with  reference 
to  the  carriage  of  live  stock.  We  have  not  space  here  to  cite  and 
quote  statutes.  Notable  among  the  statutes  in  this  respect  are 
those  requiring  the  common  carrier  to  feed  and  water  stock  in 
transit,  providing  that  they  shall  not  be  in  the  cars  consecutively 
for  more  than  twenty-eight  hours.  Notice  the  statutes  of  the 
different  states  and  of  the  United  States.*® 

§  491.  The  shipper  must  deal  fairly  with  the  carrier. — It  is 
a  duty  incumbent  upon  the  shipper  to  deal  fairly  with  the  car- 
rier. If  he  knows  of  any  peculiarity  of  the  animals  that  would 
increase  the  risk  or  liability  of  the  carrier,  he  should  disclose  it 
at  the  time  of  making  the  shipment.  As,  for  example,  that  the 
animals,  or  any  of  them,  are  wild,  ungovernable  or  vicious,  or 
liable  to  injure  the  others;  or,  if  they  have  been  exposed  to  any 
disease,  especially  infectious  or  contagious  disease,  which  might 
be  communicated  or  infect  the  cars  or  yards  of  the  carrier. 

It  goes  without  saying  that  if  the  shipper  has  by  reason  of 
failure  to  disclose  any  conditions  or  facts  known  to  him,  the  with- 
holding of  which  results  in  injury  or  damage  to  others,  and  also 
in  subjecting  the  carrier  to  the  payment  of  damages,  he  is  liable 
to  the  carrier  for  the  damages  which  are  shown  to  result  from 
such  unfair  action  upon  his  part.     It  is  but  another  application 

47  Cooke  V.  Kansas  City,  etc.  R.  Heller  v.  Chicago  &  Grand  Trunk 
Co,  57  Mo.  App.  471.  R.  Co.,  109  Mich.  53. 

48  111.  Cent.  R.  Co.  v.  Adams,  42  49  Texas,  etc.  R.  Co.  v.  Byers 
111.  474;  Toledo,  etc.  R.  Co.  v.  Bros.  (Tex.  Civ.  App.  1905),  84  S. 
Hamilton,  76  111.  393;  Sturgeon  v.  W.  1087,  3  U.  S.  Compiled  St. 
St.  Louis,  etc.  R.  Co.,  65  Mo.  569;  (1901)  pp.  2995,  2996. 


486  CARRIERS.  [§  492. 

of  the  principle  that  the  shipper  must  be  held  liable  for  damages 
resulting  from  his  own  fault;  but  such  conduct  of  the  shipper 
will  not  excuse  the  carrier  for  negligence  in  shipping,  transport- 
ing or  delivering-  the  goods. 

Section  VI. 

Where  the  Loss  or  Injury  is  Occasioned  from  the  Exercise 
OP  Public  Authority. 

§  492.  The  reasons  for  the  exception. — The  reason  that  this 
exception  obtains  is  apparent.  Public  law  and  authority  must 
dominate  and  govern  all  persons,  companies  and  business  within 
its  jurisdiction.  Upon  that  depends  their  protection,  and  at  its 
hands  they  must  accept  rules  governing  their  liability.  So,  where 
the  law  or  public  authority  is  set  in  motion  it  is  presumed  to  do 
justice,  and  whomsoever  it  affects  must  accept  the  consequences 
of  its  just  adjudication.  As  where  goods  are  delivered  to  a  com- 
mon carrier  for  shipment,  and  are  levied  or  attached  in  the 
hands  of  the  carrier  upon  a  valid  writ  of  attachment  or  execu- 
tion, by  means  of  which  the  carrier  is  deprived  of  the  possession 
of  the  property  by  the  officer  who  serves  the  writ,  the  carrier  is 
not  liable  for  the  non-delivery  of  the  goods  to  the  consignee, 
provided  the  writ  upon  its  face  is  a  valid  writ,  and  from  a  court 
having  competent  jurisdiction  to  issue  it.^"     If  the  rule  were 

50  In  Pingree  v.  Detroit,  L.  &  N.  from  a  person  not  authorized  to 
R.  Co.,  66  Mich.  143,  144,  Mr.  Jus-  direct  its  shipment,  he  has  been 
tice  Campbell,  speaking  for  the  declared  by  the  supreme  court  of 
majority  of  the  court,  said:  "There  this  state  to  have  no  lien  for  his 
seems  to  be  a  little  apparent  con-  services  and  nc  right  to  retain  the 
flict  between  the  cases  on  this  property.  Fitch  v.  Newbury,  1 
question,  but  there  can  be  no  Doug.  1.  There  is  no  sense  or  jus- 
doubt  where  the  rule  of  justice  tice  in  enabling  a  consignor  to 
lies.  If  the  carrier  could  rely  compel  a  carrier,  at  his  peril,  to 
against  all  the  world  upon  the  defend  a  title  that  he  knows  noth- 
right  of  the  consignor  to  intrust  ing  about,  and  has  no  means  of 
him  with  possession,  then  it  would  defending  unless  the  consignor 
be  reasonable  to  hold  him  estop-  gives  it  to  him.  In  the  present 
ped  from  questioning  that  title.  case  the  attachment  was  against 
But  there  is  no  authority  for  plaintiff's  mortgagors  and  was  reg- 
such  immunity.  The  true  owner  ular.  It  must  have  been  levied  on 
may  take  his  property  from  a  the  claim  that  plaintiffs  had  no 
carrier  as  well  as  from  any  one  right  to  the  goods.  Defendant 
else.     If  a  carrier  gets   property  could  not  have  resisted  the  seizure 


§  492.] 


LIMITATIONS  UPON  LIABILITY. 


487 


otherwise  it  would  be  not  only  exceedingly  unjust  to  the  carrier, 
but  would  recognize  an  infringement  upon  the  authority  of  the 
law,  by  inviting  its  disobedience;  would  work  injustice  to  the 
carrier  by  often  holding  him  liable  for  property  to  which  the 
shipper  had  no  title,  thus  opening  the  door  to  fraud. 


without  incurring  the  risk  of  seri- 
ous civil  and  perhaps  criminal  lia- 
bility; and  if  plaintiffs'  claim  is 
correct,  this  must  have  been  done 
at  defendant's  own  risk  and  ex- 
pense. This  precise  question  was 
decided  in  favor  of  the  carrier  in 
Stiles  V.  Davis,  1  Black.  101,  upon 
the  ground  that  defendant  was  not 
required  to  resist  the  sheriff,  and 
could  not  properly  do  so.  This 
rule  has  been  adhered  to  by  the 
United  States  supreme  court  and 
followed  to  a  considerable  extent. 
It  is  the  only  rule  compatable  with 
public  order.  A  carrier  must 
otherwise  resist  the  officer,  or 
find  some  one  who  will  swear  out 
a  replevin,  which  a  carrier  usually 
has  not  knowledge  enough  to  jus- 
tify. If  the  carrier  cannot  call  on 
the  consignor  to  defend,  and 
must  take  the  risk  and  the  loss, 
his  position  would  be  one  of  hope- 
less weakness.  If  he  declines  to 
accept  custody  of  the  goods,  he 
runs  the  risk  of  an  action;  and 
if  a  wrongful  holder  by  doubtful 
title,  or  even  by  theft  compels 
him  to  receive  the  consignment, 
he  can  get  the  value  from  the  car- 
rier who  has  had  them  seized  by 
the  true  owner,  unless  the  carrier 
has  means  of  proof,  that  he  never 
can  be  presumed  to  have,  of  the 
lack  of  interest  in  the  shipper. 
Whatever  may  be  a  carrier's  duty 
to  resist  a  forcible  seizure  with- 
out process,  he  cannot  be  com- 
pelled to  assume  that  the  regular 
process  is  illegal,  and  to  accept  all 
the  consequences  of  resisting  offi- 
cers of  the  law.  If  he  is  excusable 


for  yielding  to  a  public  enemy,  he 
cannot  be  at  fault  for  yielding  to 
actual  authority  what  he  may 
yield  to  usurped  authority." 
Where  governmental  authorities 
prevented  carrying  till  duty  paid. 
Pennsylvania  Co.  v.  Canadian  P. 
Co.,  107  111.  App.  386.  Not  liable 
when  seized  by  an  officer  of  the 
law.  Southern  Ry.  Co.  v.  Hey- 
mann,  118  Ga.  616,  45  S.  E.  491. 
Where  the  contract  was  to  ship 
lead  to  Japan  during  Japan  and 
Chinese  war,  the  railway  com- 
pany delivered  it  to  the  ship,  the 
customs  officers  refused  to  clear 
the  ship,  the  goods  being  contra- 
band of  war.  Farmers'  Loan,  etc. 
Co.  V.  Northern  P.  R.  Co.,  112  Fed. 
Rep.  829.  Where  goods  attached, 
Ohio,  etc.  R.  Co.  v.  Yohe,  51  Ind. 
181.  Must  see  that  proceedings  are 
regular,  Bliven  v.  Hudson  Ry.  Co., 
35  Barb.  188.  It  is  enough  if  the 
writ  is  valid  on  its  face.  McAlis- 
ter  V.  Railway  Co.,  74  Mo.  361.  But 
see  Kiff  v.  Old  Colony  &  N.  Ry.  Co., 
117  Mass.  591,  19  Am.  Rep.  429. 
Where  goods  were  seized  on  writ 
of  attaehment,  and  with  no  knowl- 
edge of  defendant  that  they  were 
spirituous  liquors,  etc.,  the  court 
ruled  below  that  the  goods  were 
not  liable  to  be  taken  upon  a  writ 
of  attachment,  against  the  owner; 
that  the  facts  offered  to  be  proven 
by  the  defendant  constituted  no 
defense.  The  supreme  court  sus- 
tained this  ruling,  citing  authori- 
ties. Edwards  v.  White  Line,  etc. 
Co.,  104  Mass.  159;  Adams  v. 
Scott,  104  Mass.  164-166. 


CHAPTER  VII. 

"WHEN  THE  DAMAGE  OR  INJURY  IS  THE  RESULT  OF 
DEVIATION  OR  DELAY. 


§  493.  Implied  undertaking  of  the 
carrier. 

494.  Notice  to  ttie  carrier. 

495.  What  is  unreasonable 

delay — How  avoided. 

496.  Reasonable  diligence. 

497.  Delay  occasioned  by  devia- 

tion from  route. 

498.  Loss  or  injury  occur- 
ring on  deviated  route — 
Act  of  God  or  public 
enemy,  etc. 


§  499. 


-  Often  duty  of  the  car- 
rier to  delay  or  deviate 
from  course. 

500.  When  delay  and  deviation 

on  account  of  strikes  or 
riots. 

501.  May  discriminate  as  to  ship- 

ping perishable  goods. 

502.  Duty  of  carrier  as  to  goods 

after  disaster. 


§  493.  Implied  undertaking  of  the  carrier. — The  carrier  im- 
pliedly undertakes  on  receiving  the  goods  for  shipment  that  he 
will,  without  unreasonable  delay,  transport  them  by  his  own 
route,  or  the  route  he  is  using  and  has  the  right  to  use  or  con- 
trol, to  their  destination,  without  deviation  from  the  usual 
line  or  lines  of  transportation,  and  within  a  reasonable  time  de- 
liver the  goods  to  the  consignee  at  the  point  to  which  they  were 
shipped.^  In  some  of  the  states  this  prompt  shipment  and  for- 
warding of  the  goods  is  required  by  statute.    A  common  carrier, 


1  Hales  V.  London  &  N.  W.  R. 
Co.,  4  B.  &  S.  Rep.  Q.  B.  66,  116 
E.  C.  L.  66.  Blackburn,  J.,  said: 
"The  obligation  of  the  carrier  to 
carry  depends  on  his  public  pro- 
fession, and  therefore  he  is  bound 
to  carry  only  according  to  the 
route  which  he  holds  out  to  the 
public.  But  he  is  bound  to  deliver 
in  a  reasonable  time,  having  re- 
gard to  that  route.  It  is  no  breach 
of  his  duty  that  he  does  not  carry 
by  a  shorter  route  than  that  which 
he    professes.      If    the    customer 


wishes  his  goods  sent  by  a  shorter 
route  than  the  accustomed  one  he 
should  ask  for  it,  and  if  refused 
he  could  exercise  his  choice  of 
sending  by  another  carrier;  but 
when  the  goods  are  sent  by  the 
usual  route  the  carrier  must  use 
reasonable  diligence,  and  whether 
he  has  done  so  is  a  question  of 
fact."  Bibb,  etc.  Co.  v.  Atchison, 
etc.  Co.,  94  Minn.  269,  69  L.  R.  A. 
.509,  and  notes;  Huston,  etc.  R. 
Co.  V.  Foster  (Tex.  Civ.  App.  1906), 
86  S.  W.  44. 


§  494.]   DAMAGE  OR  INJURY  FROM  DEVIATION  OR  DELAY.       489 

as  we  have  seen,  may  be  excused  from  receiving  goods  for  sliip- 
ment  for  certain  reasons,  among  which  is  that  he  has  not  suffi- 
cient facilities  for  handling  the  goods ;  but  he  is  bound  to  know 
when  he  accepts  the  goods  that  he  can  ship  them ;  that  he  has  or 
can  obtain  facilities  for  shipping  them  in  a  reasonable  time.  He 
cannot  remain  silent  as  to  this,  receive  the  goods,  hold  them  in 
his  warehouse  to  the  damage  of  the  shipper  or  consignee,  and 
answer  that  for  want  of  facilities  he  did  not  ship  them.  In  such 
case  it  is  the  duty  of  the  carrier  to  give  the  shipper  notice  of  the 
situation,  that  he  is  unable  to  ship  at  once  because  of  lack  of 
means  of  transportation,  thus  giving  the  shipper  the  option  of 
shipping  them  by  another  carrier  if  he  desires,  or  leave  them 
with  the  carrier  making  the  excuse.  Under  certain  circumstances 
the  carrier  would  be  excused  if  his  business  becomes  congested 
and  there  is  such  a  press  of  business  that  the  carrier  cannot 
transport  the  goods  at  once.  In  such  case,  however,  if  the  car- 
rier has  notice  of  the  fact,  or  of  facts  from  which  he  might  rea- 
sonably conclude  that  that  would  be  the  result,  his  duty  is  to 
give  the  shipper  notice  of  the  condition,  and  that  he  cannot,  or 
probably  cannot,  transport  the  goods  at  once;  in  other  words, 
if  the  carrier  has  no  legal  reason  for  not  complying  with  the  re- 
quest or  demand  of  the  shipper  for  immediate  shipment,  he  is 
bound  to  notify  him  in  order  that  he  may  have  the  option  above 
mentioned.  So,  where  a  plaintiff  delivered  to  an  express  com- 
pany venison  for  shipment  on  the  promise  of  the  agent  to  for- 
ward it  by  a  certain  train,  and  such  train  did  not  stop  for  ex- 
press matter,  and  the  agent  gave  no  further  notice  to  the  shipper, 
but  forvv'arded  it  by  a  train  several  hours  later,  and  the  venison 
was  spoiled  by  the  delay,  the  express  company  was  held  to  be 
liable  for  the  loss.^ 

§  494.  Notice  to  the  carrier. — It  seems,  too,  that  the 

law  recognizes  that  where  the  shipper  has  given  to  the  carrier 
notice  that  he  desires  the  freight  to  be  forwarded  at  once  because 
he  has  immediate  use  for  it,  or,  as  is  sometimes  the  case,  that  it 
is  for  the  purpose  of  filling  a  certain  contract,  in  such  case  the 
carrier  will  be  held  bound  where  he  receives  the  goods  for  ship- 
ment to  fulfill  the  contract  of  affreightment  so  as  to  comply  with 
the  notice  given  by  the  shipper.  And  where  the  carrier  was  in- 
formed by  the  shipper,  at  the  time  of  delivering  certain  horses 

zCantwell  v.  Pacific  Ex.  Co.,  58  Ark.  487. 


490  CARRIERS.  [§  494. 

to  be  shipped  to  Alaska,  that  the  purpose  in  shipping  the  horses 
was  to  use  them  in  freighting  goods,  and  that  there  was  a  great 
demand  at  that  point  for  horses  of  the  kind  he  was  shipping, 
and  that  he  could  make  a  large  amount  of  money  each  day  by  the 
use  of  them,  and  wanted  them  delivered  at  a  certain  time,  and 
they  were  not  delivered  until  twenty-seven  days  after  the  time 
agreed  on,  the  evidence  showing  that  during  the  interval  between 
the  time  when  the  horses  were  to  arrive  and  the  date  of  their  ar- 
rival they  could  have  earned  a  large  amount  of  money,  it  was 
held  that  in  estimating  the  plaintiff's  damage  the  jury  might 
consider  what  might  have  been  earned  by  the  horses  during  the 
time  of  delay;  the  court  saying  "the  general  rule  is  thus  stated: 
No  recovery  can  be  had  for  loss  of  profits  in  contracts  of 
sale  or  contemplated  by  the  shipper  unless  the  facts  and  circum- 
stances of  such  sale  are  communicated  to  the  carrier  upon  ship- 
ment. ' '  ^  The  reason  of  the  rule  is,  that  the  contract  of  affreight- 
ment is  presumed  to  have  been  made  in  view  of  the  results  which 
to  the  knowledge  of  both  parties  thereto  would  naturally  follow 
its  breach.  While  there  is  respectable  authority  for  holding 
that  profits  are  never  in  any  case  recoverable,  since  it  may  never 
be  known  what  profits  might  have  been  earned,  the  weight  of  au- 
thority, both  English  and  American,  sustains  the  rule  that 'the 
party  injured  is  entitled  to  recover  all  his  damages,  including 
gains  which  he  might  have  earned  as  well  as  losses  that  he  sus- 
tained, provided  they  are  certain,  and  are  such  as  might  nat- 
urally have  been  expected  to  follow  the  breach. 

This  rule  does  not  run  counter  to  that  settled  rule  of  damages, 
that  profits  which  are  remote  or  uncertain,  mere  expected  profits 
depending  upon  numerous  contingencies,  cannot  be  recovered  be- 
cause thy  cannot  be  said  to  be  the  direct  and  immediate  result 

3  Pac.    Express    Co.    v.    Darnell  439,  49  L.  Ed.  269;   St.  Louis,  etc. 

Bros.,  62  Tex.  639;  Brown  v.  Had-  R.  Co.  v.  Coolidge,  73  Ark.  112,  83 

ley,    43    Kan.    267,    23    Pac.    492;  S.  W.  333,  67  L.  R.  A.  555.  In  Bcur- 

Brownell    v.    Chapman,    84    Iowa,  land  v.  Chocland,  etc.  R.  Co.  (Tex. 

504;    Manufacturing  Co.  v.  Pinch,  1906),  90  S.  W.  483,  3  L.  R.  A.  (U. 

91  Mich.  156;  Grindley  v.  Express  S.)   1111,  the  freight  arrived  and 

Co.,  67  Me.  317;  111.  Cent.  R.  Co.  was  demanded,  but  by  mistake  of 

V.  Cobb  et  al.,  64  111.  128;   Dunbe  the  agent  of  the  carrier  was  sent 

&  Knapp  V.  Chicago,  etc.  R.   Co  away,    held    carrier    liable.      See 

(Tex.   Civ.   App.    1906),   86   S.   W.  cases  collected  in  notes  3  L.  R.  A. 

797;     Northern    Pac.    Ry.    Co.    v.  (N.  S.)  1111. 
American  Trading  Co.,  195  IT.   S. 


§  49-1.]   DAMAGE  OR  INJURY  FROM  DEVIATION  OR  DELAY.       491 

of  the  non-fulfillment  of  the  contract  or  agreement ;  the  question 
under  discussion  is  a  very  different  one,  depending  upon  a  very 
different  state  of  facts;  here  the  parties  have  in  mind  the  very 
profits  that  can  be  made,  as  where  it  is  Icnown  and  understood 
that  the  goods  are  in  demand  at  a  certain  price  if  they  can  be 
delivered  at  a  certain  time,  the  shipper  giving  the  carrier  notice 
of  this  and  contracting  to  ship  the  goods  to  fill  the  particular 
demand,  or  perhaps  to  fill  a  certain,  order  at  an  advanced  price. 
The  shipment  is  made  for  this  purpose,  and  the  carrier  knowing 
it,  and  making  the  contract  for  the  purpose  of  carrying  out  the 
object  of  the  shipment;  in  such  case  every  sentiment  of  justice 
would  demand  that  the  carrier  should  be  compelled  to  fulfiU  his 
contract,  and  certainly,  if  he  knows  that  he  cannot,  instead  of 
receiving  the  goods  for  shipment  he  should  notify  the  shipper 
that  he  is  unable  to  carry  the  goods  as  desired;  but  if  the  con- 
tract is  made  in  contemplation  of  such  a  state  of  facts,  it  may 
be  said  in  case  of  failure  on  the  part  of  the  carrier  that  the  dam- 
ages resulting  from  such  failure  were  contemplated  by  the  par- 
ties at  the  time  of  making  the  contract,  and  the  carrier  would 
be  liable.  If  the  property  shipped  is  for  immediate  use,  and  the 
object  is  well  understood  by  the  carrier  because  of  receiving 
notice  thereof  from  the  shipper  at  the  time  of  the  shipment, 
then  if  the  carrier  fails  and  damages  result,  the  carrier  would 
be  liable  upon  the  same  theory;  for  the  resulting  damages  must 
have  been  contemplated  at  the  time  of  making  the  contract  of 
shipment.  This  has  already  been  illustrated  by  the  case  of 
Pacific  Exp.  Co.  v.  Darnell  Bros.*  Such  damages  cannot  be  said 
to  be  speculative  or  depending  upon  uncertain  contingencies. 
Nor  are  they  remote  from  the  contract  made  by  the  parties,  for 
the  situation  was  fully  known  and  contemplated — indeed,  was 
a  part  of  the  contract,  and  somewhat  in  the  nature  of  a  condi- 
tion in  the  minds  of  the  parties  making  the  contract,  which 
should  be  complied  with.^ 

4  62  Tex.  639,  and  cases  cited  according  to  tlie  natural  course  of 
ante,  §  494.  things,   from   such  breach   of  the 

5  In  Hadley  v.  Baxendale,  9  ETxeh.  contract  itself,  or  such  as  may 
341,  Alderson,  B.,  said:  "Where  reasonably  be  supposed  to  have 
two  parties  have  made  a  contract  been  in  the  contemplation  of  both 
which  one  of  them  has  broken,  the  parties  at  the  time  they  made  the 
damage  which  the  other  party  contract  as  the  probable  result 
ought  to  receive  in  respect  of  of  the  breach  of  it."  And  Cock- 
such  breach  arising  naturally,  i.  e.,  burn,  J.,   in   Simpson  v.   Railroad 


492  CARRIERS.  [§  495. 

In  Manufacturing  Co.  v.  Pinch  ^  the  Michigan  court  held  that 
in  a  suit  to  recover  for  machinery  and  repairs  furnished  for  de- 
fendant's flouring  mill,  he  was  entitled  to  show  in  reduction  of 
plaintiff's  claim  the  value  of  the  use  of  the  mill  while  it  was 
compelled  to  lie  idle  because  of  the  failure  of  the  plaintiff  to 
complete  the  contract  to  repair  within  the  time  specified. 

In  Clarke  v.  Needles ''  it  was  held,  if  goods  are  received  by 
common  carriers  with  orders  to  ship  immediately,  and  are  stored 
in  their  warehouse,  the  navigation  being  obstructed,  and  there 
consumed  by  fire,  they  are  liable  for  the  value  to  the  owner  as 
common  carriers.  And  where  cattle  were  delivered  for  ship- 
ment to  the  conmion  carrier,  it  was  held  that  a  conversation 
had  with  the  agent  of  the  carrier  shortly  before  the  execution 
of  the  contract  was  admissible  to  show  notice  to  the  carrier  of 
the  plaintiff's  intention  to  sell  his  cattle  on  a  particular  day; 
and  it  appearing  that  the  cattle  were  unloaded  through  defend- 
ant's mistake,  and  upon  being  reloaded  into  the  same  car  a 
broken  wheel  was  discovered  which  necessitated  additional  delay, 
so  that  the  cattle  were  delivered  to  the  connecting  carrier  some 
seven  hours  after  they  should  have  been  delivered,  and  arrived 
at  their  destination  some  five  hours  too  late  for  that  day's 
market,  it  was  held  that  it  was  a  question  for  the  jury  whether 
or  not  such  delay  was  unreasonable  and  attributable  to  defend- 
ant's negligence.^ 

§  495.  What  is  unreasonable  delay — How  avoided. — 

What  is  unreasonable  delay  in  the  shipping  or  transportation 
of  the  goods  is  a  question  of  fact  for  the  jury  depending  upon 
very  many  circumstances;  the  kind  of  goods  that  are  shipped, 
the  weather,  season  of  the  year,  the  press  of  business, — no  fixed 
rule  can  be  laid  down  that  will  define  it  or  govern  in  determin- 

Co.,  1  Q.  B.  D.  274,  said:  "The  prin-  quences  of  proof  of  that  object." 

ciple   is   now   settled    that   when-  Howard  v.  Manufacturing  Co.,  139 

ever    either    the    object    of    the  U.  S.  199;  Railroad  Co.  v.  Hale,  83 

sender    is    especially    brought    to  111.  360;  Allis  v.  McLean,  48  Mich. 

the  notice   of  the  carrier,  or  cir-  428;    Harvey  v.  Railroad  Co.,  124 

cumstances  are  known  to  the  car-  Mass.  421;  Sedgwick  on  Dam.  (8th 

rier  from  which  the  object  ought  ed.),  174. 

in  reason  to  be  inferred,  so  that  s  96  Mich.  156. 

the  object  may  be  taken  to  have  "^  25  Pa.  St.  338. 

been  within  the  contemplation  of  s  Mo.  Pac.  R.  Co.  v.  Hall,  66  Fed. 

both  parties,  damages  may  be  re-  868. 

covered    for    the    natural     conse- 


§  496.]   DAMAGE  OR  INJURY  FROM  DEVIATION  OR  DELAY.       493 

ing  it  in  all  cases;  the  circumstances  of  each  particular  case 
must  determine  the  question.  The  court,  in  the  case  of  McGraw 
V.  Baltimore  &  0.  B.  Co.,^  said:  "The  obligation  of  the  common 
carrier  is  to  transport  the  goods  safely  and  within  a  reasonable 
time,  but  what  is  a  reasonable  time  is  not  susceptible  of  being 
defined  by  any  general  rule ;  the  circumstances  of  each  particular 
case  must  be  adverted  to  in  order  to  determine  what  is  a  reason- 
able time  in  that  case.  But  it  may  be  said  that  the  mode  of  con- 
veyance, the  distance,  the  nature  of  the  goods,  the  season  of  the 
year,  the  character  of  the  weather,  and  the  ordinary  facilities  oi 
transportation  are  to  be  considered  in  determining  whether  m 
the  particular  case  there  has  been  an  unreasonable  delay." 

§  496.  Same  subject — Reasonable  diligence. — From  what  has 
been  said  it  may  be  concluded  that  the  general  rule  is  that  the 
carrier  is  liable  for  any  damage  resulting  from  delay  in  trans- 
porting the  goods  when  the  delay  is  attributable  to  the  negli- 
gence of  the  carrier  or  his  servants ;  but  when  it  appears  that  he 
is  not  guilty  of  negligence,  but  on  the  contrary  has  done  all  that 
could  be  reasonably  expected  of  him,  and  has  been  diligent  in  his 
undertaking  to  deliver  the  goods,  then  in  the  absence  of  an  ex- 
press contract  for  the  delivery  upon  a  certain  time  he  will  not  be 
held  liable;  reasonable  diligence  will  excuse  the  failure  upon  the 
implied  contract  or  undertaking.  The  carrier  is  bound  to  deliver 
the  goods  at  their  destination  within  a  reasonable  time,  except 
when  he  is  under  an  express  contract  to  do  so  at  a  stated  time. 
The  duty  to  so  deliver  is  an  implied  duty,  but  it  may  be  overcome 
by  proofs  on  the  part  of  the  carrier  showing  that  he  has  used  all 
reasonable  care  and  diligence  in  transporting  the  freight,  and 
that  the  delay  was  not  occasioned  on  account  of  his  fault  or  negli- 
gence, but  because  of  unforeseen  and  unavoidable  hindrance  or 
misfortune,  or  unavoidable  accident  not  necessarily  the  result  of 
the  act  of  God  or  the  public  enemy,  but  such  circumstances  and 
conditions,  even  though  they  resulted  from  the  act  of  man,  that 
he  could  not  by  ordinary  diligence  avert.  As  was  said  in  Mc- 
Graw V.  Baltimore  &  0.  R.  Co.:'^^  "It  is  obvious  that  ordinarily 

9  18  W.  Va.  361,  9  Am.  &  Eng.  the  freight  was  accepted  by  the 
R.  Cases,  188,  41  Am.  Rep.  696;  carrier  without  notice  to  the  ship- 
Vicksburg  v.  Ragsdale,  46  Miss.  per  that  its  delivery  would  be  de- 
458;  Cobb  v.  111.  Cent.  R.  Co.,  38  layed  on  account  of  unusual  rush 
Iowa,  601.  of  business,  or  large  accumulation 

10  18  W.  Va.  361,  367.  But  where      of  freight,  it  was  held  that  these 


494  CARRIERS.  [§'  496. 

the  delay  in  shipping  articles  not  liable  to  decay  or  damage,  such 
as  iron,  wool,  cotton,  grain,  and  things  of  like  character  not  lia- 
ble to  be  injured  by  a  few  days'  delay,  would  be  no  test  in  a 
case  where  the  delay  of  a  day  in  transportation  would  result  in 
loss  or  damage  by  reason  of  their  nature  and  inherent  character, 
such  as  live  stock,  fish,  oysters,  fruit,  vegetables  and  things  of 
like  character.  In  the  one  case  there  is  nothing  in  the  thing 
itself  which  would  induce  a  prudent  business  man  to  anticipate 
injury  from  a  temporary  delay  in  transportation,  while  in  the 
other  case  any  prudent  business  man,  from  the  nature  of  the 
thing  itself,  might  reasonably  anticipate  the  loss  or  damage  from 
delay.  So  the  season  of  the  year  is  an  element  to  be  considered ; 
some  articles,  as  some  kinds  of  vegetables,  being  of  that  nature 
that  at  certain  seasons  of  the  year  a  brief  delay  would  be  harm- 
less, whereas  in  another  season  of  the  year  the  delay  would  re- 
sult in  loss  or  damage."  And  so  where  the  delay  complained  of 
occurred  upon  the  mountain  division  of  a  road,  and  was  oc- 
casioned by  an  unexpected  storm  of  unusual  severity  upon  that 
division,  the  operator  of  the  road  using  every  reasonable  effort 
to  keep  the  line  open,  it  was  held  that  the  carrier  was  not  liable ; 
that  a  common .  carrier  is  liable  for  delay  in  the  transportation 
and  delivery  of  goods  only  when  it  is  caused  by  his  want  of  or- 
dinary care  and  diligence.^^  And  where  a  carrier's  canal-boat 
was  run  into  by  a  scow  which  made  it  necessary  for  hint  to  stop 
for  repairs,  the  delay  thus  occasioned  was  held  excusable.^^    And 

conditions  were  no  defense  to  an  Mo.  491;  Hutch,  on  Carriers,  sec. 
action  for  delay.  Texas,  etc.  R.  331.  In  Geismer  v.  L.  S.  &  N.  R. 
Co.  V.  Kalp  (Tex.  Civ.  App.  1906),  Co.,  102  N.  Y.  563,  it  was  held  that 
88  S.  W.  417.  A  carrier  to  be  held  "in  the  absence  of  a  special  con- 
liable  for  special  damages  for  de-  tract  there  is  no  absolute  duty 
lay,  must  have  had  notice  at  the  resting  upon  a  common  carrier  to 
time  the  contract  was  made  of  the  deliver  goods  intrusted  to  him 
special  circumstances.  It  is  not  within  what  would  be  under  ordi- 
enough  that  such  notice  was  given  nary  circumstances  a  reasonable 
during  the  delay.  Crutcher  v.  time;  he  may  excuse  delay  by  ac- 
Schoctaw,  etc.  R.  Co.,  74  Ark.  358,  cident  or  misfortune,  not  inevit- 
85  S.  W.  770;  Chicago,  etc.  R.  Co.  able  or  produced  by  the  act  of 
V.  C.  C.  Mill,  etc.  Co.  (Tex.  Civ.  God,  but  the  result  of  the  conduct 
App.  1906),  87  S.  W.  753.  of  men;   all  that  can  be  required 

11  Palmer   v.    Atchison,    etc.    R.  of  him  is  that  he  exercise  due  care 
Co.,  101  Cal.  187.  and  diligence  to  guard  against  de- 

12  Parson    v.    Hardy,    14    Wend.  lay  and  to  forward  the  goods  to 
215;  Balentine  v.  Railroad  Co.,  40  their  destination." 


§■  498.]       DAMAGE  OR  INJURY  FROM  DEVIATION  OR  DELAY.  495 

the  same  was  held  where  the  delay  was  on  account  of  deep  snow 
which  made  the  road  temporarily  impassable ;  or  from  the  wash- 
ing away  of  a  bridge  by  a  storm  and  freshet.  It  may  be  said, 
however,  that  the  rule  governing  the  liability  of  the  carrier  for 
delay  is  very  different  from  the  measure  of  liability  in  case  of 
loss  or  injury  to  the  property.  For  delay  in  transporting  and 
delivering  the  merchandise  at  its  destination  the  law  holds  the 
carrier  for  liability  on  account  of  his  negligence,  while  for  loss 
or  injury  of  the  property  he  is  held  not  on  account  of  negligence 
or  fault,  but  as  an  insurer,  to  be  excused  only  where  the  loss  or 
injury  was  the  result  of  the  act  of  God,  the  public  enemy,  the 
act  of  the  shipper,  the  inherent  nature  of  the  goods,  the  require- 
ments of  the  law  or  of  public  authority. 

§  497.  Delay  occasioned  by  deviation  from  route. — Where 
the  delay  is  occasioned  on  account  of  deviation  from  the  usual, 
ordinary  and  expected  route  of  the  carrier  in  conveying  the 
goods,  it  then  becomes  more  serious.  As  we  have  seen,  there 
is  an  implied  contract  binding  upon  the  carrier  to  carry  the 
goods  over  his  own  line,  and  if  they  are  to  be  forwarded  over 
other  lines  to  send  them  by  the  usual  route  to  their  destination. 
So,  where  goods  are  conveyed  by  ship  or  boat  the  same  presump- 
tion and  implied  understanding  exists,  and  the  question  is,  under 
what  circumstances  may  the  carrier  deviate  from  this;  course. 
If  the  deviation  from  the  route  is  unnecessary,  there  seems  to  be 
no  question  but  that  the  carrier  would  be  liable ;  for  by  deviating 
from  the  route  he  becomes  a  wrong-doer;  but  where  it  is  neces- 
sary, and  the  necessity  arises  during  the  time  the  goods  are  in 
transit,  and  the  carrier  has  exhibited  a  sound  discretion  in  mak- 
ing the  deviation,  it  seems  that  the  carrier  would  not  be  liable. 

§  498,  Loss  or  injury  occurring  on  deviated  route — Act 

of  God,  public  enemy,  etc. — Upon  the  consideration  of  this  ques- 
tion, necessarily  arises  the  further  question  as  to  the  liability 
of  the  carrier  for  loss,  even  though  it  is  occasioned  by  the  act 
of  God,  the  public  enemy,  or  those  causes  which  are  said  to  ex- 
cuse the  carrier  when  they  are  the  direct  result  of  the  loss. 
Here  again  we  are  met  with  the  question  as  to  whether  the  devia- 
tion is  necessary ;  whether  it  occurred  during  the  time  the  goods 
are  actually  in  transit,  and  whether  the  carrier  exercised  sound 
discretion.  It  seems  to  be  well  understood,  as  we  have  already 
stated,  that  the  carrier  cannot  unnecessarily  deviate  from  his 
route;  that  the  shipper,  when  he  intrusted  his  goods  to  the  car- 


496  CARRIERS.  [§   -498. 

rier,  did  it  with  the  understanding  that  they  would  be  carried 
over  the  usual  route  of  the  carrier.  But  there  often  comes  times 
while  the  goods  are  in  transit  where  sound  discretion  and  ordi- 
nary diligence  dictate  that  to  proceed  upon  the  course  would  be 
to  encounter  great  danger,  with  a  probable  loss  of  the  property 
in  transit.  As,  for  example,  where  a  ship  is  proceeding  with 
her  cargo  and  encounters  serious  danger  by  floating  ice,  sound 
discretion  and  good  judgment  would  dictate  that  the  course  of 
the  vessel  should  be  changed,  and  that  she  should  undertake  to 
make  her  port  by  some  other  course  than  that  usually  purs.ued, 
because  to  pursue  the  usual  course  the  master  would  encounter 
perils  and  dangers  that  could  not  be  successfully  overcome.  It 
seems  to  be  the  rule  that  when  the  deviation  occurs  during  the 
time  the  goods  are  in  transit,  and  is  necessary,  and  good  judg- 
ment and  sound  discretion  are  used,  in  such  case  the  carrier 
would  be  heard  to  make  this  defense  and  would  be  excused  if 
there  was  loss  or  injury.  But  if  he  deviates  from  the  course  un- 
necessarily, then  he  cannot  be  excused  from  loss,  even  though 
while  upon  the  changed  course  the  loss  should  occur  by  storm, 
tempest,  lightning,  or  an  act  of  God,  or  even  by  the  public 
enemy,  or  by  reason  of  the  causes  which  usually  excuse  the  car- 
rier, and  which  would  excuse  him  in  this  case  had  he  proceeded 
without  deviation  and  by  his  usual  route.  A  case  often  cited  is 
the  case  of  Crosby  v.  Fitch}^  This  was  an  action  to  recover 
damages  for  the  loss  of  fifty-two  bales  of  cotton  belonging  to  the 
plaintiff  upon  the  defendant's  boat,  shipped  at  New  York  to  be 
transported  to  Norwich.  It  was  claimed  by  the  plaintiff  that  the 
usual  route  from  New  York  to  New  London  and  Norwich  was 
through  Long  Island  Sound;  that  the  master  sailed  from  New 
York  with  the  sloop  having  the  cotton  on  board  and  departed 
from  such  usual  route,  going  outside  of  Long  Island  Sound  to 
the  port  of  New  London  without  any  adequate  or  justifiable  ne- 
cessity; that  by  means  thereof  the  sloop  and  the  cotton  were  ex- 

13  12  Conn.  410,  421.  While  a  flood  or  storm,  to  which  the  de- 
carrier  is  liable  for  an  injury  lay  of  the  carrier  subjected  the 
caused  by  concurrence  of  its  neg-  goods.  Moffatt  Com.  Co.  v.  Union 
ligence  with  an  act  of  God,  yet  Pac.  R.  Co.,  113  Mo.  App.  544,  88 
such  injury  must  be  a  natural  and  S.  W.  117.  If  through  act  of  God 
probable  consequence  of  the  neg-  that  could  not  have  been  reason- 
ligence,  and  not  an  unusual  and  ably  foreseen,  Empire  St.  Cattle 
unanticipated  consequence,  such  as  Co.  v.  Atchison,  etc.  R.  Co.,  135 
injury     from     an     unprecedented  Fed    135. 


§  498.]   DAMAGE  OR  INJURY  PROM  DEVIATION  OR  DELAY.       497 

posed  to  a  severe  storm  while  outside  of  Long  Island  and  thus 
the  cotton  was  lost.  The  defendant  claimed  that  navigation  of 
Long  Island  Sound  was  obstructed  by  ice,  and  that  it  was  un- 
certain at  what  time  the  sound  would  become  navigable,  and  in 
the  opinion  of  the  matser  it  would  not  become  navigable  for  sev- 
eral days;  that  the  closing  of  the  sound  by  ice  for  so  long  a  pe- 
riod was  unusual,  and  that  to  have  remained  in  the  port  at  New 
York  would  have  exposed  their  cargo  to  considerable  loss  and 
damage  from  fire,  thieves  and  other  causes.  It  was  conceded 
upon  the  trial  that  the  usual  track  of  the  vessel  from  New  York 
to  New  London  and  other  eastern  ports  was  through  Long  Island 
Sound  both  summer  and  winter.  The  court,  in  its  opinion,  say : 
"Was  the  master  in  the  present  instance  justified  in  departing 
from  this  route  and  performing  his  voyage  through  the  open 
sea  on  the  south  side  of  Long  Island  in  the  month  of  February  ? 
Was  there  any  reasonable  necessity  for  this?  We  think  there 
was  not.  The  claim  is  that  the  navigation  of  the  sound  was  ob- 
structed by  ice  and  so  continued  longer  than  had  been  usual 
in  former  seasons.  Still,  we  see  no  necessity  for  the  sailing  of 
this  vessel  while  this  obstruction  continued.  The  obstruction 
was  of  such  a  nature  that  the  master  and  all  concerned  knew 
that  at  a  day  not  very  remote  it  must  be  removed.  This  was 
known  when  the  goods  were  placed  on  board.  There  was  no 
contract  which  rendered  it  the  duty  of  the  master  to  sail  by  a 
given  time,  or  to  complete  his  voyage  before  a  specified  day,  and 
if  there  had  been,  the  freezing  of  the  sound  and  the  unusual 
continuance  of  the  obstruction  was  such  an  act  of  God  as  would 
probably  have  justified  a  longer  stay  in  the  port  of  departure. 
The  distinction  is  a  very  obvious  one  between  the  present  case 
and  one  in  which  a  vessel  already  on  her  voyage  and  in  transitio 
departs  from  the  usual  route  by  reason  of  obstructions  of  this 
nature,  or  of  blockades,  etc.  In  such  cases  the  master  must  act ; 
a  necessity  is  thrown  upon  him ;  and  if  he  is  governed  by  a  sound 
discretion,  he  stands  justified.  But  here  it  may  as  well  be 
claimed  that  the  master  would  be  justified  in  leaving  a  safe  port 
during  the  existence  of  a  violent  tempest,  or  in  the  face  of 
blockading  or  embargo  restrictions,  because  it  might  be  uncer- 
tain how  long  these  impediments  would  be  in  his  way.  The  port 
of  destination  in  this  voyage  was  Norwich;  and  it  is  conceded 
that  the  obstruction  caused  by  ice  to  the  navigation  of  the  river 
Thames  usually  continues  several  days  longer  than  the  sound 
32 


498  CARRIERS.  [§   499. 

continues  frozen.  The  master  knew,  therefore,  that  he  could 
not  complete  his  voyage  earlier  in  consequence  of  the  course  he 
adopted."  In  that  case  the  carrier  was  held  liable  for  the  prop- 
erty lost.  This  question  often  arises  in  actions  against  carriers, 
and  is  an  important  principle. 

§  499.  Often  duty  of  the  carrier  to  delay  or  deviate 

from  course. — In  the  light  of  what  has  been  said,  it  is  not  dif- 
ficult for  us  to  understand  that  there  may  be  cases  where  the 
courts  would  be  justified  in  holding  that  it  is  absolutely  the  duty 
of  the  common  carrier  to  delay  the  transportation  of  the  goods, 
or  even  to  deviate  from  the  usual  course,  if  to  leave  the  port 
and  proceed  upon  her  journey  the  vessel  must  necessarily  en- 
counter a  dangerous  tempest  and  storm  which  would  cause  her 
loss  and  the  destruction  and  loss  of  her  cargo ;  although  the  tem- 
pest and  storm  may  be  considered  to  be  the  act  of  God,  the  car- 
rier would  not  be  excused  for  the  loss,  as  we  have  already  seen. 
In  such  case  it  is  his  bounden  duty  to  remain  in  the  port  until 
the  storm  has  passed.  If  it  is  certain  that  to  proceed  with  a 
railroad  train  it  will  encounter  washouts  and  freshets  and  dan- 
gers which  cannot  be  overcome,  although  they  may  be  the  direct 
result  of  the  act  of  God,  still,  to  unnecessarily  encounter  them 
would  render  the  carrier  liable,  and  it  would  be  no  defense  to 
say  that  these  calamities  were  the  result  of  the  act  of  God.  In 
such  cases  it  is  the  duty  of  carrier  to  delay  the  journey;  that  is 
to  say,  he  is  not  only  excused  for  the  delay,  but  it  is  his  bounden 
duty  to  delay.  And  so,  if  to  proceed  with  the  vessel  upon  her 
course  she  is  certain  to  be  captured  by  the  blockade  force  of  an 
enemy,  in  such  case  the  master  is  confronted  with  a  necessity  de- 
manding the  change  or  deviation  of  her  course ;  and,  after  using 
sound  discretion,  good  judgment  and  reasonable  diligence,  he 
will  not  be  held  for  delay.  Indeed,  it  would  be  said  in  such  case 
that  it  was  his  duty  to  deviate  and  change  his  course ;  and  if  he 
did  not,  and  with  knowledge  of  the  fact  that  to  proceed  upon  her 
course  he  would  be  captured  by  the  public  enemy,  and  he  did 
proceed  and  was  captured,  it  would  be  no  defense,  but  he  would 
be  liable  for  the  loss.^*  It  seems,  however,  in  such  cases,  that  it 
is  the  duty  of  the  carrier,  if  he  can  do  so,  to  notify  the  shipper  of 
the  condition,  but  this  can  hardly  be  said  to  be  an  essential  to  his 
defense.    In  the  New  York  court  of  appeals,  in  Johnson  v.  N.  Y. 

1*  Crosby  v.  Fitch,  12  Conn.  410. 


§  500.]   DAMAGE  OR  INJURY  FROM  DEVIATION  OR  DELAY.       499 

Cent.  B.  Co.,^^  the  action  was  for  ninety-one  bales  of  tow  ad- 
dressed to  the  consignee  in  New  York  and  delivered  to  the  car- 
rier at  Little  Falls  to  be  delivered  at  Albany,  thence  to  be  fore- 
warded  by  the  People's  Line  of  steamboats  to  New  York.  On 
its  arrival  at  Albany  it  was  offered  by  the  proprietors  to  the 
People 's  Line  who  declined  to  receive  it  on  the  ground  that  they 
were  prohibited  by  the  act  of  others  from  transferring  freight 
of  that  description.  The  tow  was  then  shipped  by  the  defend- 
ant on  a  freight-barge,  which  was  in  good  condition,  running 
from  Albany  to  New  York.  On  the  passage  to  New  York  the 
tow  was  lost  with  the  barge.  The  court  say:  "There  is  a  class 
of  cases  in  which  an  agent  is  justified  by  an  unexpected  emer- 
gency in  deviating  from  his  instructions  where  the  safety  of  the 
property  requires  it.  In  this  instance  no  such  exigency  arose." 
The  court  held  the  defendants  liable  for  the  loss  of  the  goods.^® 
§  500.  When  delay  and  deviation  on  account  of  strikes  or 
riots. — Where  the  delay  in  the  transportation  of  the  goods  was 
caused  by  strikers  or  rioters,  or  persons  not  in  the  control  of  the 
carrier,  he  is  not  liable.  In  the  case  of  Geismer  v.  L.  8.  &  M.  8. 
R.  Co}''  the  court  say :  "  A  railroad  carrier  stands  upon  the  same 
footing  as  other  carriers,  and  may  excuse  delay  in  the  delivery 
of  goods  by  accident  or  misfortune  not  inevitable  or  produced 
by  the  act  of  God.  All  that  can  be  required  of  it  in  any  emer- 
gency is,  that  it  shall  exercise  due  care  and  diligence  to  guard 
against  delay  and  to  forward  the  goods  to  their  destination,  and 
so  it  has  been  uniformly  decided.  In  the  absence  of  special 
contract  there  is  no  absolute  duty  resting  upon  a  railroad  car- 
rier to  deliver  the  goods  intrusted  to  it  within  what,  under  ordi- 
nary circumstances,  would  be  a  reasonable  time.  Not  only 
storms  and  floods  and  other  natural  causes  may  excuse  delay, 
but  the  conduct  of  men  may  also  do  so.  An  incendiary  may 
burn  a  bridge,  a  mob  may  tear  up  the  track  or  interpose  irresisti- 
ble force  or  overpowering  intimidation,  and  the  only  duty  rest- 
ing upon  the  carrier,  not  otherwise  in  fault,  is  to  use  reasonable 
efforts  and  due  diligence  to  overcome  the  obstacles  thus  inter- 
posed and  to  forward  the  goods  to  their  destination."  And,  as 
touching  the  rule  of  law  that  the  carrier  is  liable  for  the  acts 

15  Johnson  v.  Railway  Co.,  33  N.      R.  Co.,  45  N.  Y.  514;  Davis  v.  Gar- 
Y.  610.  rett,  6  Bing.  716. 

isMaghee  v.  Camden  &  Amboy  "  102  N.  Y.  563 


500  CARRIEBS.  [§    501. 

of  his  servants,  which  has  been  iiro:ed  in  cases  of  this  kind,  the 
court  further  say:  "It  is  true  that  these  men  had  been  in  the 
employment  of  the  defendant.  But  they  left  and  abandoned  that 
employment.  They  ceased  to  be  in  its  service  or  in  any  sense  its 
agents,  for  whose  conduct  it  was  responsible.  They  not  only  re- 
fused to  obey  its  orders  or  to  render  it  any  service,  but  they  wil- 
fully arrayed  themselves  in  positive  hostility  against  it,  and  in- 
timidated and  defeated  the  efforts  of  employees  who  were  will- 
ing to  serve  it.  They  became  a  mob  of  vicious  lawbreakers  to  be 
dealt  with  by  the  government,  whose  duty  it  was,  by  the  use  of 
adequate  force,  to  restore  order,  enforce  proper  respect  for  pri- 
vate property  and  private  rights  and  obedience  to  law.  If  they 
had  burned  down  bridges,  torn  up  tracks,  or  gone  into  passen- 
ger cars  and  assaulted  passengers,  upon  what  principle  could  it 
be  held  that  as  to  such  acts  they  were  the  employees  of  the  de- 
fendant for  whom  it  was  responsible  ?  If  they  had  sued  the  de- 
fendant for  wages  for  the  eleven  days  when  they  were  thus 
engaged  in  blocking  its  business,  no  one  will  claim  that  they 
could  have  recovered.  It  matters  not,  if  it  be  true,  that  the 
strike  was  conceived  and  organized  while  the  strikers  were  in 
the  employment  of  the  defendant.  In  doing  that  they  were  not 
in  its  service  or  seeking  to  promote  its  interests  or  to  discharge 
any  duty  they  owed  it;  but  they  were  engaged  in  a  matter  en- 
tirely outside  of  their  employment  and  seeking  their  own  ends 
and  not  the  interests  of  the  defendant.  The  mischief  did  not 
come  from  the  strike — from  the  refusal  of  the  employees  to 
work,  but  from  their  violent  and  unlawful  conduct  after  they 
had  abandoned  the  service  of  the  defendant. ' '  ^* 

§  501.  May  discriminate  as  to  shipping  perishable  goods. — 
It  is  a  rule  of  the  common  law,  as  well  as  statutory,  in  most  of  the 
states,  that  the  common  carrier  must  not  discriminate  in  favor 
of  any  particular  shipper;  this  we  have  discussed  in  another 
chapter.  But  these  rules  have  yielded  to  certain  exceptions 
founded  upon  the  sound  judgment  of  men  and  a  sense  of  hu- 
manity. For  example,  where  perishable  goods  are  received  for 
shipment  while  there  are  others  awaiting  shipment  which  are 
not  perishable,  the  carrier  not  having  sufficient  facilities  for 

18  Pac.  &  C.  R.  Co.  V.  Hazen,  84  L.  S.  &  M.  S.  R.  Co.,  6  Am.  &  Eng. 
111.  36;  Pac.  C.  W.  L.  R.  Co.  v.  R.  Cases,  39;  Railway  Co.  v.  Junt- 
Hallowell,  65  Ind.  188;  Bennett  v.      zer,  10  Bradw.  (111.)  205. 


§    501.]        DAMAGE  OR  INJURY  FROM  DEVIATION  OR  DELAY. 


501 


sending  all  forward  may  discriminate  in  favor  of  perishable 
goods,  as  there  could  be  no  damage  of  any  consequence  by  rea- 
son of  delaying  goods  that  are  not  perishable,  vi'hile  to  delay 
the  perishable  freight  might  result  in  its  entire  loss.  And  where 
goods  are  delivered  to  the  carrier  for  the  relief  of  the  sufferers 
by  some  great  disaster — as,  for  example,  the  Chicago  fire,  the 
Johnstown  flood,  and  the  Texas  storm  sufferers, — ^in  such  case 
it  is  the  duty  of  the  carrier  to  forward  such  goods  to  the  ex- 
clusion of  goods  awaiting  shipment  in  their  warehouses  if 
he  has  not  the  facilities  for  both,  and  he  will  be  excused  for  the 
delay  of  the  goods  discriminated  against.  This,  of  course,  is 
founded  upon  public  policy ;  it  is  the  saving  of  the  lives  of  men, 
and  a  sense  of  humanity  dictates  that  in  such  case  relief  freight 
should  be  forwarded  at  once.^^ 


19  Mich.  Cent.  R.  Co.  v.  Burrows, 
33  Mich.  6.  "Giving  preference  to 
relief  goods  sent  to  the  sufferers 
of  the  great  Chicago  fire  was  not 
such  a  discrimination  against 
shippers  of  other  freight  as  to 
make  carriers  liable  as  for  negli- 
gence for  not  forwarding  freight 
in  the  order  jn  which  it  was  re- 
ceived. All  general  rules  must 
yield  to  a  great  public  necessity." 
The  court  say  at  page  11:  "It  was 
urged,  however,  that  it  was  the 
duty  of  the  company  to  send  for- 
ward freight  in  the  same  order  in 
which  it  was  received;  that  there 
should  have  been  no  discrimina- 
tion made,  no  preference  given  be- 
tween the  classes  of  freight  re- 
ceived by  the  company  for  trans- 
portation. After  the  fire  large 
quantities  of  goods  were  being 
sent  forward  by  relief  societies 
from  all  parts  of  the  country  for 
the  purpose  of  both  preventing 
and  relieving  the  great  suffering 
and  distress  which  did  exist  and 
otherwise  would  have  existed 
among  the  people,  who  had  by  a 
great  public  calamity  suddenly 
been  left  without  proper  clothing 


or  houses  to  shield  and  protect 
them  from  the  inclemencies  of  the 
season,  or  suflBcient  provisions  to 
prevent  many  of  them  from  immi- 
nent danger  of  starvation.  So  ur- 
gent was  the  demand  for  supplies 
that  relief  societies  sprung  up  all 
over  the  country.  The  people 
promptly  responded  to  their  calls, 
and  the  necessary  supplies  of  all 
kinds  were  sent  forward  in  such 
abundance  that  railroad  compa- 
nies, crippled  as  they  were  by  the 
fire,  found  it  difficult  to  promptly 
carry  and  dispose  of  their  freights. 
Relief  goods,  therefore,  were  given 
the  preference,  and  the  companies 
would  have  been  justly  charge- 
able with  public  condemnation 
had  they  refused  to  give  a  prefer- 
ence to  and  carry  all  such  goods 
offered  for  transportation  under 
the  circumstances.  Although  the 
company  had  suffered  very  great 
injury  by  the  fire,  yet  it  was  do- 
ing all  in  its  power  to  repair  the 
damage  as  promptly  as  it  could, 
and  at  the  same  time  making 
every  effort  to  carry  forward  all 
goods  received,  making,  however, 
a    just,    proper   and    highly    com- 


502  CAERIEES.  [§   502. 

§  502.  Duty  of  carrier  as  to  goods  after  disaster. — ^From  pre- 
ceding discussions  and  from  what  has  been  said  in  this  chapter 
upon  the  subject,  the  duty  of  the  carrier  as  to  goods  that  have 
been  injured  or  delayed  during  transportation  is  understood. 
He  must  be  diligent  and  careful  in  looking  after  them  and  do 
all  that  he  can  reasonably  do  to  save  them  for  the  owner.  Even 
if  the  injury  resulted  without  fault  on  his  part,  as  from  the  act 
of  God,  or  a  cause  that  would  excuse  the  carrier,  he  is  not  ex- 
cused from  further  duty  in  respect  to  the  goods.  He  must  use 
reasonable  diligence  in  saving  all  that  can  be  saved,  and  if  he 
does  less  he  will  be  held  liable  for  the  result  of  that  failure. 
Some  discussion  has  been  had  as  to  what  that  ordinary  diligence 
requires  upon  the  part  of  the  carrier.  If,  for  example,  grain 
that  is  being  shipped  by  a  steamboat  or  barge  carrying  other 
freight  should,  during  transit,  by  reason  of  a  severe  storm,  and 
without  the  fault  of  the  carrier,  becomes  damaged  by  water,  is  it 
the  duty  of  the  carrier  to  lay  up  in  port,  unload  and  dry  the 
wheat?  It  has  been  held  that  ordinary  diligence  does  not  go  to 
that  extent,  especially  when  the  carrier  is  loaded  with  other 
freight.-^  A  different  duty  would  be  laid  upon  him,  however, 
in  the  exercise  of  ordinary  diligence  if  he  were  in  port  and  to 
stay  for  some  time,  for  in  such  case  there  would  be  no  unneces- 
sary detention  of  other  freight  and  his  duty  would  be  clear. 
But  where  a  consignment  of  furs  became  wet  during  transit,  it 
was  held  that  it  was  the  duty  of  the  carrier  to  unpack  and  dry 
them,-^  and  it  may  be  said  generally  that  whatever  ought  to  be 
done  must  be  done. 

mendable  discrimination  in  favor  portation,    and    he    is    unable    to 

of  that  class  of  goods  which  would  carry  all,  he  may,   and  it  is  his 

alleviate    the    suffering    and    dis-  duty   to   give   preference   to   that 

tressed."     Tierney  v.  N.  Y.  Cent.  which  is  perishable." 

R.  Co.,  76  N.  Y.  305-315.   "It  seems  20  Steamboat  Lynx  v.   King,    12 

where  two  kinds  of  property,  one  Mo.  272. 

perishable  and  the  other  not,  are  21  Chouteaux    v.   Leech   Co.,    18 

delivered  to  a  carrier  at  the  same  Pa.  St.  224. 

time  by  different  owners  for  trans- 


CHAPTER  VIII. 


CONTRACTS   REGULATING    THE   CARRIAGE   OF    GOODS. 


503.  The  object  of  the  chapter. 

504.  Contracts   imposing  obliga- 

tions upon  the  carrier. 

505.  If  the  contract  is  to  carry 

by  a  certain  route  or  in 
a  certain  manner. 

506.  By   a  certain  time. 

507.  If   the   contract   is   to 

transport  by  water,  it 
cannot  be  fulfilled  by 
carrying   by    rail. 

508.  Wlhen    the    change,    devia- 

tion or  delay  from  the 
stipulations  in  the  con- 
tract is  the  fault  of  the 
shipper. 

509.  Contracts  limiting  the  lia- 

bility of  the  carrier. 

510.  Cannot  limit  liability  when 

the  loss  is  the  result  of 
the  negligence  of  the 
carrier   or  his   servants. 

511.  Rule  in  different  states  as 

to  limitation  or  negli- 
gence. 

512.  Limiting    liability    as 

to   amount. 

513.  The   consideration    of   con- 

tracts  limiting   liability. 

514.  Option  to  the  shipper 


to  accept  contract  limit- 
ing   liability. 

515.  Contract    must    be    reason- 

able fair  and  without 
fraud. 

516.  The   contract,   how   made. 

517.  Contract  limiting  the  time 

in  which  to  present 
claim  or  commence  suit. 

518.  Contract    limiting    liability 

need  not  be  in  writing. 

519.  Construction    of    the    con- 

tract  limiting  liability. 

520.  Contracts  implied 

from   notice. 

521.  Further  consideration. 

522.  General  notice  writ- 
ten or  printed  upon  the 
receipt  or  bill  of  lading. 

523.  Representations       of       the 

shipper,  fraudulent  or 
otherwise. 

524.  When    the    contract    limit- 

ing liability  inures  to 
the  benefit  of  the  con- 
necting  carrier. 

525.  Limiting   liability   in   Eng- 

land, especially  by  no- 
tice. 

526.  The  result  of  this  act. 


§  503.  The  object  of  the  chapter. — Thus  far,  in  discussing 
the  liability  of  the  carrier,  we  have  confined  ourselves  almost 
entirely  to  the  implied  obligations  of  the  parties.  It  is  the  ob- 
ject of  this  chapter  to  present  the  liability  as  created  by  express 
or  special  contract,  or  by  contracts  that  have  the  same  effect 
as  to  rights  and  liabilities.  There  are  two  classes  of  these  con- 
tracts that  are  important:   (1)   Contracts  imposing  obligations 


504  CAKRIER3.  [§    505. 

upon  the  carrier  not  required  by  implication  under  the  ordinary 
shipment  or  bill  of  lading;  and  (2)  contracts  which  limit  the 
liability  of  the  carrier. 

§  504.  (1)  Contracts  imposing  obligations  upon  the  carrier. 
There  can  be  no  question  but  that  the  carrier  can,  by  contract, 
increase  his  liability,  and  whether  increased  or  not,  when  the 
contract  is  written,  the  stipulations  must  be  carried  out  by  the 
carrier,  and  for  failure  on  his  part  to  transport  and  deliver  the 
goods  as  stipulated  in  the  contract,  which  results  in  damage  to 
the  owner,  the  carrier  will  be  liable.  And  so,  if  by  contract  he 
has  agreed  to  carry  the  goods  to  their  destination  by  a  particular 
time,  or  by  a  certain  route,  nothing  but  a  strict  compliance  with 
the  terms  of  the  contract  will  shield  him  from  liability  if  injur}' 
or  loss  occurs.  And  where  the  owner  of  a  vessel  was  under  con- 
tract to  deliver  coal  received  on  board  at  Baltimore  to  the  de- 
fendants in  New  Haven,  but  on  account  of  the  ice  the  carrier 
could  not  get  to  the  dock  but  arrived  in  the  port  of  destination, 
it  was  held  in  an  action  for  demurrage  for  the  time  the  vessel 
laid  in  port  after  her  arrival,  that  the  duty  of  the  carrier  was, 
under  his  contract,  to  land  the  cargo  upon  the  dock,  and  that 
he  would  not  be  excused  from  this  liability  because  of  the  ice 
that  prevented  him  from  landing.^  And  it  may  be  said  that 
though  prevented  from  fulfilling  the  contract  by  the  act  of  God, 
or  other  of  the  causes  that  will  excuse  the  carrier  in  cases  where 
there  is  no  special  contract,  still  he  will  not  be  excused  if  the 
contract  to  deliver  is  special;  the  contract  must  govern.  In 
such  cases  he  becomes,  indeed,  an  insurer  of  the  property.^  And 
even  where  the  carrier  is  prevented  on  account  of  war,  it  has 
been  held  that  this  would  not  dispense  with  the  performance  of 
his  contract ;  he  must  fulfill  the  stipulations  in  the  contract  as  he 
made  them.' 

§  505.  If  the  contract  is  to  carry  by  a  certain  route  or  in  a 
certain  manner. — So,  if  the  contract  is  to  carry  the  goods  by 
land  or  water,  or  by  some  certain  route,  they  must  be  so  carried, 
and  if  the  course  is  changed,  no  matter  for  what  reason,  and 
there  is  any  damage  from  delay,  or  injury  to  the  property,  or 
any  loss  of  property,  even  if  it  be  by  the  direct  result  of  an  act 
of  God,  the  carrier  is  liable.  His  deviation  from  the  stipulations 
in  the  contract  renders  him  an  insurer,  even  against  loss  that 

1  Hodgden  v.  New  York  &  N.  H.  2  Wilson  v.  Missouri  Pac.  R.  Co., 

R.  Co.,  46  Conn.  277.  74  Mo.  364,  41  Am.  Rep.  318. 

s  The  Harriman,  9  Wall.  161. 


§  505. 


CONTRACTS — TRANSPORTATION    OF    GOODS. 


505 


may  occur  by  act  of  God  or  the  public  enemy.  And  where  by 
contract  the  carrier  agreed  to  forvvard  certain  boxes  of  goods 
for  plaintiffs  from  New  York  to  New  Orleans  by  a  certain 
steamer,  the  Ocean  Bird,  and  after  receiving  the  goods  and  mak- 
ing the  agreement  it  was  found  the  steamer  was  not  running, 
and  the  goods  for  that  reason  could  not  be  shipped  by  it,  and  on 
learning  this  defendant  forwarded  the  goods  by  another  steamer, 
which  was  lost  with  the  goods,  it  was  held  that  the  carrier  was 
liable  for  the  value  of  the  goods;  that  the  fact  that  the  specified 
vessel  was  withdrawn  from  the  route  so  that  the  goods  could  not 
be  shipped  by  her  would  not  authorize  them  to  forward  "by 
any  other  special,  customary  and  proper  mode  of  conveyance," 
It  was  their  duty  to  notify  the  owners  of  the  goods  and  receive 
instructions;  forwarding  by  another  vessel,  being  unauthorized, 
rendered  them  responsible  for  the  consequences.*    The  court  say : 


*  Goodrich  v.  Thompson,  44  N. 
Y.  ,324,  333.  In  Maghee  v.  Camden 
&  A.  R.  Co.,  45  N.  Y.  522,  the  court 
say:  "When  a  carrier  accepts 
goods  to  be  carried  with  a  direc- 
tion on  the  part  of*  the  owner  to 
carry  them  in  a  particular  way,  or 
by  a  specified  route,  he  is  bound 
to  obey  such  direction;  and  if  he 
attempts  to  perform  his  contract 
in  a  manner  different  from  his 
undertaliing,  he  becomes  an  in- 
surer, and  cannot  avail  himself  of 
any  exceptions  in  the  contract.  In 
Steel  V.  Flagg,  5  Barn.  &  Aid.  342, 
a  parcel  of  cashier's  notes  were 
delivered  to  a  carrier,  to  be  car- 
ried by  a  mail  coach,  and  were  sent 
by  a  different  coach  and  were 
lost;  notice  had  been  given  to  the 
carrier,  of  which  the  owner  was 
cognizant,  that  he  would  not  be 
answerable  for  the  value  of  any 
article  to  an  amount  exceeding 
five  pounds,  unless  it  was  insured, 
and  the  evidence  tended  to  show 
that  the  owner  had  concealed  the 
nature  and  value  of  the  package, 
and  it  was  claimed  that  the  con- 
cealment  was   a  fraud   upon   the 


carrier,  and  avoided  his  contract. 
But  the  court  held  the  carrier  lia- 
ble, and  Bailey,  J.,  said:  "If  this 
defendant  had  sent  the  parcel  by 
mail,  in  pursuance  of  his  contract, 
I  should  have  been  of  opinion 
that,  under  the  circumstances  of 
the  case,  he  would  not  have  been 
liable  for  the  loss,  but  having  sent 
it  by  a  different  mode  of  convey- 
ance, I  am  of  opinion  that  he  is 
liable."  Story  on  bailments,  sec. 
509,  states  the  rule,  "if  the  carrier 
deviates  from  the  voyage,  he  is 
responsible  for  all  losses,  even 
from  inevitable  casualty;  for, 
under  such  circumstances,  the 
loss  is  traced  back  through  all  the 
intermediate  causes  to  the  first  de- 
parture from  duty."  Fisher  v. 
Boston,  etc.  R.  Co.,  99  Me.  338,  50 
Atl.  532.  But  when  goods  are  to  be 
transported  over  several  lines  and 
may  be  forwarded  over  several 
different  lines,  and  the  bill  of  lad- 
ing does  not  specify  any  particu- 
lar line,  carrier  may  designate  the 
route.  Steidl  v.  Minneapolis,  etc. 
R.  Co.,  94  Minn.  233,  102  N.  W.  701. 


506  CARRIERS.  [§   506. 

"Assuming,  then,  that  the  receipt  was  properly  given,  it  was 
obligatory  on  the  defendants  to  forward  the  goods  to  New  Or- 
leans by  the  steamer  designated  therein.  They  were  received 
for  that  and  for  no  other  purpose,  and  the  defendants  had  no 
right,  on  the  failure  of  the  Ocean  Bird  to  make  the  contemplated 
voyage,  to  send  them  'by  any  other  usual,  customary  and  proper 
mode  of  conveyance,'  as  claimed  in  the  second  ground  of  the 
motion  for  the  dismissal  of  the  complaint.  That  would  justify 
a  control  over  property  which  was  never  authorized.  A  specific 
agreement  to  do  an  act  in  a  certain  manner  is  not  satisfied  by  an 
attempt  to  do  it  in  another,  and  a  failure  to  accomplish  the  ob- 
ject. There  was  no  unexpected  emergency  rendering  it  neces- 
sary to  send  the  goods  by  the  Crescent  City.  When  it  was  ascer- 
tained that  the  Ocean  Bird  would  not  sail  for  New  Orleans,  and 
that  therefore  the  boxes  could  not  be  sent  by  her,  it  was  the  duty 
of  the  defendants  to  notify  the  plaintiffs  of  that  fact  and  await 
their  instructions.  The  forwarding  of  the  goods  by  another 
steamer  than  that  agreed  upon  without  the  assent  of  the  plaint- 
iffs, or  any  notice  to  them  of  their  intention  so  to  forward  them, 
was  clearly  not  an  execution  of  the  agreement  the  defendants 
entered  into,  and  they  were  chargeable  with  the  consequences 
of  the  unauthorized  act." 

§  506.  By  a  certai'n  time. — In  a  case  where  the  contract 

was  to  deliver  the  goods  to  a  certain  place  by  a  stated  time, 
which  gave  the  usual  time  for  the  trip,  the  carrier  will  be  held 
by  the  terms  of  the  contract,  and  such  obligation  will  not  be 
modified  by  a  bill  of  lading  subsequently  handed  to  the  shipper's 
clerk.  And  when  by  reason  of  the  failure  of  the  carrier  to  so 
deliver  the  goods  the  shipper  lost  a  profitable  market,  the  market 
falling  between  the  time  the  goods  were  to  be  delivered  and  the 
time  they  were  actually  delivered,  the  carrier  will  be  held  for 
the  damage  thus  suffered.^ 

5  Rudell    et    al.    v.    Ogdensburg  through  its  agent,  upon  a  date  of 

Transit  Co.,  117  Mich.  5G8,  76  N.  delivery     at     destination     which 

W.    381.      In   this    case   the   court  gives  the  usual  time  to  make  the 

say:      "Delays     sometimes     occur  trip,  such  contract  cannot  be  held 

both   on    land    and   water.     Many  unusual   or  extraordinary,  and  is 

cases  like  the  present  and  that  of  within    the    general    authority    of 

the    theatrical     troupe     are     con-  the  agent.    The  carrying  business 

stantly  arising,  where  delivery  at  of  the  country  is  mostly  done  by 

a  certain  time  is  essential.    When  corporations    which    r.ct    through 

the  shipper  and  the  carrier  agree,  agents,  who,  as  in  this  case,  fre- 


§■  507.]  CONTRACTS — TRANSPORTATION    OP    GOODS.  507 

§  507.  If  the  contract  is  to  transport  by  water,  it  cannot 

be  fulfilled  by  carrying  by  rail. — When  by  the  agreement  of 
the  parties  the  goods  were  to  be  forwarded  from  New  York  to 
Detroit  by  sail  on  the  lakes,  in  which  the  shipper  agreed  to  risk 
the  dangers  of  the  sea,*  the  court  say:  "The  contract  in  terms 
is  equally  restrictive  as  to  the  mode  of  transportation  on  the  lake 
as  it  is  in  the  price  per  hundred.  Transportation  by  sail  is  one 
mode  and  transportation  by  steam  is  another  mode  of  transport- 
ing goods  and  property.  Both  are  common  modes  on  our  lakes, 
and  are  as  clearly  distinct  and  as  definitely  understood,  when 
applied  to  the  commercial  business  prosecuted  on  our  inland 
seas,  as  upon  the  ocean;  and  with  this  clear  and  well  known  dis- 
tinction before  us,  which  has  been  recognized  for  many  years 
throughout  the  world,  it  will  not  do  to  say  than  an  unconditional 
agreement  to  transport  goods  'by  sail  on  the  lake'  is  not  restrict- 
ive as  to  the  mode  of  carrying.  .  .  .  When  the  carrier  in 
error  sent  forward,  from  Oswego,  the  goods  by  steam,  they  vio- 
lated their  own  express  stipulation  to  transport  them  from  that 
point  by  sail,  and  in  doing  so  they  became  insurers  to  the  de- 
fendants in  error  for  the  safe  delivery  in  Detroit  of  every  arti- 
cle of  the  property.  This  is  a  well  established  legal  principle, 
founded  in  justice  and  equity,  and  numerous  authorities  might 
be  referred  to  in  support  of  it;  but  such  reference  is  deemed  en- 
tirely unnecessary,  as  the  principle  must  be  well  understood,  it 
being  an  elementary  principle  of  law,  that  when  a  carrier  under- 
takes to  carry  goods  in  a  particular  manner,  or  by  a  particular 
route,  and  without  the  consent  of  the  owner  transports  them  in 
a  different  manner,  or  by  a  different  route,  he  becomes  the  in- 
surer for  the  actual  delivery  of  the  goods  at  the  place  of  destina- 

quently      solicit     business,      and,  nothing  of  a  bill  of  lading  in  this 

when  the  contract  is  a  reasonable  case,  and  had  never  seen  any  be- 

one,  it  must  be  upheld,  in  the  ab-  fore    the    trial.      Defendant    intro- 

sence  of  notice  of  lack  of  author-  duced   a  bill   of   lading,    which    it 

ity.     It  is  urged  that  the  custom-  claims    was    given    to    plaintiff's 

ary  way  of  carrying  on  the  busi-  clerk   at  the   time   or   soon   after 

ness  of   a  common   carrier   is  by  the   delivery   of   the   goods   to   it. 

issuing  bills  of  lading,  which  con-  The    contract    was    made    before, 

stitute   the   contract  between   the  and  defendant  could  not  change  it 

parties.     This  custom  is  not  con-  by   handing   a   receipt   or   bill   of 

elusive    of    the    authority    of    the  lading  to  a  clerk." 

agent,  or  of  the  reasonableness  of  6  Merrick    v.    Webster,    3    Mich, 

the  contracts  he  assumes  to  make.  26S,  275. 
Plaintiffs  testified  that  they  knew 


508  CAERIEES.  [§'  508. 

tion.  The  plaintiffs  below,  by  the  terms  of  the  contract,  took 
upon  themselves  the  dangers  of  the  sea,  upon  the  condition  that 
they  were  transported  'by  sail  on  the  lake,'  and  upon  no  other 
condition  did  they  assume  that  risk.  And  if  they,  after  the  exe- 
cution and  delivery  of  the  contract,  obtain  (as  asserted  on  the 
argument)  an  insurance  upon  their  goods  to  be  transported  'by 
sail  on  the  lake,'  they  could  not  have  recovered  upon  it.  The 
goods  having  been  lost  on  the  lake  without  any  negligence  or 
fault  of  the  master  or  hands  of  the  propeller,  could  have  made 
no  difference;  they  were  forwarded  by  a  different  mode  from 
that  represented  by  the  owners  to  their  insurers.  Nor  can  that 
make  the  least  difference  in  the  liability  of  the  plaintiffs  in  error 
under  the  contract  for  the  transportation.  The  rule  of  law  is 
well  settled,  that  when  parties  have  deliberatedly  put  their  en- 
gagements into  writing,  without  any  uncertainty  as  to  the  object 
or  extent  of  the  engagement,  it  is  a  legal  presumtion,  which  has 
always  been  held  conclusive,  that  the  whole  agreement,  as  well 
as  the  extent  and  manner  of  its  performance,  were  embodied  in 
the  instrument,  and  by  it  the  parties  are  bound.  All  testimony 
of  previous  conversations,  or  declarations  at  the  time  or  after 
the  execution  of  the  agreement,  are  rejected  upon  the  ground 
that  such  evidence  would  tend  to  substitute  a  new  and  different 
contract  between  the  parties,  to  the  injury  of  one  or  the  other 
of  them.  This  law  is  based  upon  sound  reason  and  cannot  be  de- 
parted from." 

§  508.  When  the  change,  deviation  or  delay  from  the  stipu- 
lations in  the  contract  is  the  fault  of  the  shipper, — The  shipper 
as  well  as  the  carrier  will  be  held  to  any  stipulations  or  condi- 
tions he  is  to  fulfill  or  keep  in  the  agreement.  Often  the  ship- 
ment depends  upon  some  duty  to  be  performed  by  him;  as,  for 
example,  upon  the  goods  being  delivered  in  time  for  loading,  or 
upon  their  being  properly  packed,  or  in  safe  condition  for  ship- 
ment, the  condition  not  being  apparent.  "Whenever  the  shipper's 
dereliction  or  misconduct  is  the  direct  cause  of  the  failure  on 
the  part  of  the  carrier  to  keep  and  perform  the  stipulations  he 
has  entered  into,  then,  even  though  the  contract  be  special  or 
express,  the  carrier  will  be  excused,  for  in  such  case  the  failure 
of  performance  of  the  contract  is  not  his  fault,  but  the  fault  of 
the  shipper.'^ 

7  Hutchinson  on  Car.,  sec.  319a;  Fowler  v.  Liverpool,  etc.  Steam  Co., 
87  N.  Y.  190. 


§    509.]  CONTRACTS — TRANSPORTATION    OF    GOODS.  509 

§  509.  (2)  Contracts  limiting  the  liability  of  the  carrier. — 

The  discussion  of  this  question  seems  to  have  resolved  itself  into 
two  subdivisions:  (1)  special  or  express  contracts,  and  (2)  con- 
tracts implied  from  notice. 

(1)  As  to  the  first  subdivision  there  is  not  much  difficulty^ 
the  courts  holding  with  great  unanimity  that  the  carrier  may 
by  express  contract  limit  his  extraordinary  liability;  and  this, 
with  the  exception  of  a  few  of  the  states  that  have  by  statute 
or  constitutional  provisions  prohibited  such  limitation,  seems  to 
be  the  general  holding  in  the  states  and  in  England.  The  ques- 
tion was  before  the  supreme  court  of  the  United  States  in  New 
Jersey  Steam  Transportation  Co.  v.  Merchants'  BanJc,^  where  it 
was  fully  discussed  by  Mr.  Justice  Nelson,  who  delivered  the 
opinion  of  the  court.  The  court  say:  "The  general  liability  of 
the  carrier,  independently  of  any  special  agreement,  is  familiar. 
He  is  chargeable  as  an  insurer  of  the  goods  and  accountable  for 
any  damage  or  loss  that  may  happen  to  them  in  the  course  of 
the  conveyance,  unless  arising  from  inevitable  accident ;  in  other 
words,  the  act  of  God  or  the  public  enemy.  The  liability  of  the 
respondents,  therefore,  would  be  undoubted  were  it  not  for  the 
special  agreement  under  which  the  goods  were  shipped.  The 
question  is:  To  what  extent  has  this  agreement  qualified  the 
common-law  liability?  ...  As  the  extraordinary  duties  an- 
nexed to  his  employment  concern  only,  in  the  particular  in- 
stance, the  parties  to  the  transaction,  involving  simply  rights  of 
property,  the  safe  custody  and  delivery  of  the  goods,  we  are  un- 
able to  perceive  any  well-founded  objection  to  the  restriction, 
or  any  stronger  reasons  forbidding  it  than  exist  in  the  case  of 

8  6  How.  (U.  S.)  344.    It  is  gen-  by  the  owner  of  the  goods.    Hill  v. 

erally    accepted    that    a    common  Boston,  etc.  R.  Co.,  144  Mass.  284; 

carrier    can    by    special    contract  Zimmer  v.  New  York,  etc.,  R.,  137 

limit  his  liability.     Russell  et  al.  N.   Y.  460.     Hays  v.  Campbell,   63 

V.  Erie  R.  Co.,  70  N.  J.  L.  808,  1  Cal.  143,  holds  carrier  is  put  upon 

Am.  &  Eng.  Ann.  Cases,  672.     In  inquiry  as  to  authority  of  agent 

this  case  the  authority  of  an  agent  when    the    assumed    contract    of 

of  the  shipper  to  contract  to  limit  the    agent    differs    from    a    prior 

the  liability  of  the  carrier  is  dis-  agreement  between  the  carrier  and 

cussed  and   the  holding  generally  the  principal.     Jennings  v.  Grand 

accepted    would   seem   to   be   that  Trunk  R.  Co.,  127  N.  Y.  438,  and 

whereas    a    special    agent    of   the  see  Nelson  v.  Hudson  River  R.  Co. 

shipper  may  so  contract,  such  an  48  N.  Y.  498,  for  a  general  discua- 

agent  would  have  no  authority  to  sion  of  agent's  authority, 
change  a  contract  already  made 


510  CARRIERS.  [§    509. 

any  other  insurer  of  goods,  to  which  his  obligation  is  analogous, 
and  which  depends  altogether  upon  the  contract  between  the 
parties.  The  owner,  by  entering  into  the  contract,  virtually 
agrees  that,  in  respect  to  the  particular  transaction,  the  carrier 
is  not  to  be  regarded  as  in  the  exercise  of  his  public  employment, 
but  as  a  private  person  who  incurs  no  responsibility  beyond  that 
of  an  ordinary  bailee  for  hire,  and  answerable  only  for  miscon- 
duct or  negligence.  The  right  thus  to  restrict  the  obligation  is 
admitted  in  a  large  class  of  cases  founded  on  bills  of  lading  and 
charter  parties,  where  the  exception  to  the  common-law  liability 
(other  than  that  of  inevitable  accident)  has  been,  from  time  to 
time,  enlarged  and  the  risk  diminished  by  the  express  stipula- 
tion of  the  parties.  The  right  of  the  carrier  thus  to  limit  his  lia- 
bility in  the  shipment  of  goods  has,  we  think,  never  been  doubted. 
But  admitting  the  right  thus  to  restrict  his  obligation,  it  by  no 
means  follows  that  he  can  do  so  by  any  act  of  his  own.  He  is  in 
the  exercise  of  a  sort  of  public  olRce  and  has  public  duties  to  per- 
form, from  which  he  should  not  be  permitted  to  exonerate  him- 
self without  the  assent  of  the  parties  concerned.  And  this  is 
not  to  be  implied  or  inferred  from  a  general  notice  to  the  public, 
limiting  his  obligation,  which  may  or  may  not  be  assented  to. 
He  is  bound  to  receive  and  carry  all  the  goods  offered  for  trans- 
portation, subject  to  all  the  responsibilities  incident  to  his  em- 
ployment, and  is  liable  to  an  action  in  case  of  refusal.  And  we 
agree  with  the  court  in  the  case  of  HolUster  v.  Nowlen,  that,  if 
any  implication  is  to  be  indulged  from  the  delivery  of  the  goods 
under  the  general  notice,  it  is  as  strong  that- the  owner  intended 
to  insist  upon  his  rights,  and  the  duties  of  the  carrier,  as  it  is 
that  he  assented  to  their  qualification." 

A  later  and  a  leading  case  from  the  supreme  court  of  the 
United  States  is  Railroad  Co.  v.  LocTcwood,^  where  the  question 
was  discussed  by  Mr.  Justice  Bradley,  w^ho,  rendering  the  opin- 
ion of  the  court,  said:  *'As  the  duties  and  responsibilities  of 
public  carriers  were  prescribed  by  the  public  policy,  it  has  been 
seriously  doubted  whether  the  courts  did  wisely  in  allowing  that 
policy  to  be  departed  from  without  legislative  interference,  by 
which  needed  modifications  could  have  been  introduced  into  the 
law.  But  the  great  hardship  on  the  carrier  in  certain  special 
cases,  where  goods  of  great  value  or  subject  to  extra  risk  were 

8  17  Wall.  357. 


§■   509.]  CONTRACTS — TRANSPORTATION    OF    GOODS.  511 

delivered  to  him  without  notice  of  their  character,  and  where 
losses  happened  by  sheer  accident  without  any  possibility  of 
fraud  or  collusion  on  his  part,  such  as.  by  collisions  at  sea,  ac- 
cidental fire,  etc.,  led  to  a  relaxation  of  the  rule  to  the  extent 
of  authorizing  certain  exemptions  from  liability  in  such  eases 
to  be  provided  for,  either  by  public  notice  brought  home  to  the 
owners  of  the  goods,  or  by  inserting  exemptions  from  liability 
in  the  bill  of  lading,  or  other  contract  of  carriage.  A  modifica- 
tion of  the  strict  rule  of  responsibility,  exempting  the  carrier 
from  liability  for  accidental  losses,  where  it  can  be  safely  done, 
enables  the  carrying  interest  to  reduce  its  rates  of  compensation ; 
thus  proportionally  relieving  the  transportation  of  produce  and 
merchandise  from  some  of  the  burden  with  which  it  is  loaded." 
The  courts  of  New  Nork  for  a  long  time  were  not  in  harmony 
with  this  rule  as  laid  down  by  the  supreme  court  of  the  United 
States  and  the  supreme  courts  of  the  different  states.  The  New 
York  courts  contended  that  the  common-law  liability  had  its 
origin  in  public  policy,  and  a  limitation  of  liability  therefore 
affected  the  public  and  not  alone  the  parties,  and  for  this  reason 
could  not  be  altered  or  set  aside  by  an  agreement  of  the  parties. 
But  that  state  soon  fell  in  line  with  the  other  states  and  the 
United  States  court,  holding  to  the  general  doctrine  in  this 
country,  adopted  by  nearly  all  of  the  courts  of  the  Union  where 
not  prohibited  by  statute  or  constitution,  namely,  that  the 
carrier  may  by  special  contract  limit  his  liability  for  any  losses ; 
and  seems  to  have  gone  further  and  held  that  the  contract  may 
excuse  negligence.^" 

10  American  Trans.  Co.  v.  Moore,  19  111.  136;  American  Exp.  Co.  v. 

5  Mich.  368;  McMillan  v.  Michigan  Schier,     55     111.     140;      Perry     v. 

S  &  N.  I.  R.  Co.,  16  Mich.  79;  Kim-  Thompson,    98    Mass.    249;    Welch 

ball   V.   Railroad   Co.,   26  Vt.   247;  v.   Boston   R.    Co., '41   Conn.   333; 

Boorman  v.  Express  Co.,  21  Wis.  Black  v.  Wabash,  etc.  R,  Co.,  Ill 

154;    Hoadly   v.   Northern   Trans.  111.  351,  53  Am.  Rep.  628;  Wabash, 

Co.,    115    Mass.    304.      It   was    as-  etc.  Co.  v.  Peyton,  106  111.  537;  Mc- 

sumed    by    both    parties    as    now  Coy  v.   Keokuk  R.  Co.,   44   Iowa, 

settled    that    a    common    carrier  424;    Willis    v.    Grand    Trunk   R. 

may,  by  special  contract,  avoid  or  Co.,    62    Me.    488;    Jacobus   v.    St. 

limit  his  liability  at  common  law  Paul  R.  Co.,  20  Minn.  125;  Hall  v. 

as  an  insurer  of  property  intrusted  Cheney,  36  N.  H.  26;   Ashmore  v. 

to  him  against  loss  or  damage  by  Pennsylvania  Steam   Towing  Co., 

fire    occuring    without    his    fault.  28  N.  J.  L.  180;   Brown  v.  Adams 

Grace   v.  Adams,   100   Mass.   505;  Exp.  Co.,  15  W.  Va.  812;   Kimball 

Illinois  Cent.  R.  Co.  v.  Morrison,  v.  Rutland,  etc.  R.  Co.,  26  Vt.  247; 


512 


CARRIERS. 


§  510. 


§  510.  Cannot  limit  liability  when  the  loss  is  the  result  of 
the  negligence  of  the  carrier  or  his  servants. — While  the  carrier 
may  relieve  himself  of  the  rigor  of  the  common-law  liability 
holding  him  as  an  insurer  except  in  cases  where  the  loss  or  in- 
jury is  the  direct  result  of  the  act  of  God  or  the  public  enemy, 
he  will  not  be  permitted  to  so  limit  his  common-law  liability 
when  the  loss  or  injury  was  the  result  of  his  own  negligence  or 
that  of  his  servants.  To  allow  such  a  limitation  would  be  con- 
trary to  public  policy,  and  would  permit  the  carrier  to  stipulate 
for  exemptions  because  of  the  negligence  of  himself  or  his 
servants.^^  And  where  there  was  a  stipulation  in  a  bill  of  lad- 
ing that  the  carrier  should  not  be  liable  for  loss  or  damage 
to  the  goods  by  fire,  it  was  held  that  this  would  not  exempt  the 
carrier  from  liability  where  the  goods  were  destroyed  by  fire 
through  its  negligence  or  the  negligence  of  its  employees.^^    And 


Wescott  V.  Fargo,  63  Barb.  343,  61 
N.  Y.  542;  Evansville  R.  Co.  v. 
Young,  28  Ind.  516;  Bartlett  v. 
Pacific,  etc.  Co.,  94  Ind.  281; 
Camp  V.  Steamboat  Co.,  43  Conn. 
333;  Rice  v.  Railroad  Co.,  63  Mo. 
314;  Gaines  v.  Union  Trans.  Co., 
28  Ohio  St.  418.  Carrier  cannot 
limit  liability  except  by  express 
or  implied  contract,  and  in  the 
absence  of  an  express  contract 
no  contract  to  that  end  will  be 
implied  from  any  condition  or 
regulation  in  the  bill  of  lading 
not  within  the  general  knowledge 
of  the  shipper.  This  seems  to  be 
the  general  rule.  Baltimore,  etc. 
R.  Co.  V.  Doyle,  142  Fed.  669; 
Central,  etc.  R.  Co.  v.  Hall,  124 
Ga.  322,  4  L.  R.  A.  (N.  S.)  898, 
and  note  citing  cases.  "Where  the 
proprietor  of  a  circus  company 
made  a  contract  in  writing  with 
the  carrier  in  which  the  carrier 
agreed  to  haul  the  train  loaded 
by  the  circus  company  at  a  re- 
reduced  price,  the  loading  being 
under  the  control  of  the  circus 
company,  the  carrier  to  be  exempt 
from    liability    for    loss    or    dam- 


age to  any  of  the  property  while 
in  transit  and  to  be  indemnified 
against  damage  or  injury  to  any 
of  the  circus  company's  officers, 
agents,  performers  or  employees, 
held,  to  be  valid  and  not  against 
public  policy.  Wilson  v.  Atlantic 
Coastline  R.  Co.,  66  C.  C.  A.  486, 
133  Fed.  1022.  Stipulations  lim- 
iting liability  in  carrier's  receipt 
must  be  brought  to  the  attention 
of  shipper.  Hood  Co.  v.  American, 
etc.  Co.,  191  Mass.  27,  77  N.  E.  638. 
But  see  cases  holding  that  carrier 
cannot  limit  his  liability  for  neg- 
ligence of  himself  or  servants. 
Russell  V.  Erie  R.  Co.,  70  N.  J. 
Law,  808,  50  Atl.  150,  67  L.  R.  A. 
433;  Baltimore,  etc.  R.  Co.  v.  Fox, 
113  111.  App.  180;  Georgia  South- 
ern, etc.  R.  Co.  V.  Johnson,  King 
&  Co.,  121  Ga.  231,  48  S.  E.  807; 
Paul  V.  Penn.  R.  Co.,  70  N.  J. 
Eq.  442. 

11  Hutch,  on  Car.,  sec.  260;  Liv- 
erpool, etc.  Co.  V.  Phoenix  Ins.  Co., 
129  U.  S.  397. 

12  Liverpool  &  L.  &  G.  Ins.  Co. 
V.  McNeil,  89  Fed.  131,  32  C.  C.  A. 
173;     Cox    V.    Railroad    Co.,    170 


§    510.]  CONTRACTS — TRANSPORTATION    OF    GOODS.  513 

in  Chicago  &  N.  W.  R.  Co.  v.  Chapman '^^  the  court  say:  "The 
carrier  may  limit  its  liability  against  loss  by  fire  without  his 
fault,  and  the  liability  may  thus  be  limited  as  an  insurer  and 
against  other  losses  not  attributable  to  its  negligence  or  that  of 
its  servants,  and  may  require  the  value  of  goods  offered  for 
transportation  to  be  fixed  by  the  shipper  to  protect  itself  against 
fraud  in  case  of  loss. ' '  The  courts  of  this  state  have  never  held 
that  the  carrier  may  limit  or  restrict  its  liability  for  loss  or  dam- 
age resulting  from  its  own  gross  negligence,  or  the  gross  negli- 
gence of  its  servants.  On  the  contrary,  it  has  been  repeatedly 
and  uniformly  held  that  it  cannot  do  so,  even  by  express  con- 
tract with  the  shipper.  The  question  first  arose  in  III.  Cent.  R. 
Co.  V.  Morrison,^*  and  it  was  there  said:  'We  think  the  rule  a 
good  one  as  established  in  England  and  in  this  country,  that 
railroad  companies  have  a  right  to  restrict  their  liabilities  as 
common  carriers  by  such  contracts  as  may  be  agreed  upon  spe- 
cially, they  still  remaining  liable  for  gross  negligence  or  wilful 
misfeasance,  against  which  good  morals  and  public  policy  for- 
bid that  they  should  be  permitted  to  stipulate.'  "  And  so  it 
would  seem  to  be  settled  by  the  great  weight  of  authority  that  a 
carrier  cannot  stipulate  for  exemption  from  liabilities  which 
arise  from  the  negligence  of  himself  or  his  servants,  because  such 
a  stipulation  is  forbidden  by  public  policy,  and  that  this  is  the 
rule  even  in  case  of  express  contract.  ^^ 

Some  of  the  courts,  however,  have  gone  so  far  as  to  hold  that 
the  common-law  liability  of  a  common  carrier  may  be  limited 
even  to  the  extent  of  excusing  the  carrier  for  negligence  by  ex- 
press contract. 

The  supreme  court,  in  Hart  v.  Pa.  R.  Co.,^^  say :  ' '  The  limita- 
tion as  to  value  has  no  tendency  to  exempt  from  liability  for 

Mass.    129;     Schaller    v.    Railway  Sherwood,  132  Ind.  129,  17  L.  R. 

Co.,  97  Wis.  31;   Pierce  v.  S.  Pac.  A.  339. 

R.  Co.,  120  Cal.  156,  40  L.  R.  A,  is  133  111.  96,  8  L.  R.  A.  508. 

350,    354.      "A    carrier    is   not   re-  14  19  111.136;  Oppenheimer  v.  U. 

lieved    from    responsibility    if   lie  S.  Exp.  Co.,  69  111.   62;    Western, 

has    been    guilty    of    negligence."  etc.   R.  Co.   v.   Exposition  Cotton 

Railway    Co.    v.    Pratt,    22    Wall,  Mills,  81  Ga.  522,  2  L.  R.  A.  287; 

123;     Hutch,    on    Car.,    sec.    260;  U.  S.  Exp.  Co.  v.  Council,  84  111. 

Atchison,    T.    &    S.    F.    R.    Co.    v,  App.  491. 

Temple,  47  Kan.  74,  13   L.   R.  A.  is  Kansas,  etc.  Ry.  Co.  v.  Simp- 

362;    Terre  Haute  &   I.   R.   Co.   v.  son,  30  Kan.  645. 

16 112  U.  S.  340. 
33 


514  CARRIERS.  [§    511. 

negligence.  It  does  not  induce  want  of  care.  It  exacts  from  the 
carrier  the  measure  of  care  due  to  the  value  agreed  on.  The 
carrier  is  bound  to  respond  in  that  value  for  negligence.  The 
compensation  for  carriage  is  based  on  that  value.  The  shipper 
is  estopped  from  saying  that  the  value  is  greater.  The  articles 
have  no  greater  value,  for  the  purposes  of  the  contract  of  trans- 
portation, between  the  parties  to  that  contract.  The  carrier 
must  respond  for  negligence  up  to  that  value.  It  is  just  and  rea- 
sonable that  such  a  contract,  fairly  entered  into,  and  where  there 
is  no  deceit  practiced  on  the  shipper,  should  be  upheld.  There 
is  no  violation  of  public  policy." 

From  this  it  would  seem  that  the  court  in  this  case,  in  limit- 
ing the  recovery  to  the  amount  of  the  stipulated  value,  which 
was  less  than  the  real  value  of  the  property,  and  the  loss  of  the 
property  really  occurring  from  the  negligence  of  the  defendants, 
in  a  measure  upheld  the  doctrine  that  the  carrier  might  limit 
liability  as  to  negligence. 

§  511.  Rule  in  different  states  as  to  limitation  for  negligence. 
It  would  appear,  however,  from  an  examination  of  the  cases  in 
different  states,  that  there  is  some  conflict  in  the  holdings  of  the 
courts  upon  the  subject  of  contracts  limiting  the  liability  of  the 
carrier  for  the  negligence  of  himself  or  servants.  We  shall  not 
attempt  to  give  the  different  rules  that  have  been  adopted  by  the 
several  states  of  the  Union;  we  can  only  mention  some  of  the 
more  prominent  cases. 

In  Illinois  the  rule  seems  to  be  that  the  carrier  may  contract 
for  exemptions  from  liability  when  the  loss  or  injury  results 
from  the  negligence  of  the  carrier  or  his  servants,  but  not  when 
the  negligence  is  gross ;  ^'^  while  in  New  York  the  courts  have 
gone  so  far  as  to  hold  that  so  far  as  making  a  contract  for  limit- 
ing liability,  it  is  simply  the  business  of  the  carrier  and  the  ship- 
per, in  which  the  public  have  no  particular  concern,  and  if  the 
shipper  freely  and  voluntarily  makes  a  contract  exempting  the 
carrier  from  all  liability  for  a  valuable  consideration,  and  with- 
out fault  or  deception,  the  contract  being  fully  understood  by 
the  parties,  such  a  contract  will  be  sustained. 

Wells,  J.,  in  discussing  this  question  in  Parsons  v.  Monteith,^^ 

17  Wabash,  etc.  R.  Co.  v.  Brown,  Smith  v.  New  York  Cent.  R.  Co., 
152  111.  484.  24  N.  Y.  222.     Notice  compilation 

18  13  Barb.  (N.  Y.)  353.  See  of  cases  in  5  Am.  &  Eng.  Ency.  of 
also    comments    of    Allan,    J.,    in  Law   (2d  ed.),  313;  also  Ballou  v. 


§    512.]  CONTEACTS — TRANSPORTATION    OP    GOODS.  515 

said :  "  If  I  have  goods  to  transport  and  the  conunon  carrier  tells 
me  he  will  carry  them  for  a  particular  price,  without  incurring 
the  risk  of  loss  or  damage  by  inevitable  accident,  but  that  if  he 
takes  such  risk  he  must  add  a  percentage  to  the  price  of  trans- 
portation, I  really  cannot  see  what  the  public  have  to  do  with 
our  negotiations,  nor  why  we  should  not  be  permitted  to  make 
a  valid  contract  with  such  conditions  and  stipulations  as  we 
choose. ' ' 

There  is  also  conflict  of  opinion  as  to  limiting  liability  to  the 
payment  of  a  less  amount  than  the  valuation  of  the  property 
in  case  of  loss,  some  of  the  courts  holding  that  the  carrier  may 
limit  his  liability  to  a  less  amount  provided  the  shipper  assents 
to  the  limitation,  and  that  that  assent  is  presumed  on  accepting 
the  bill  of  lading,  or  receipt  which  contains  the  limitation,  while 
other  courts  have  held  that,  where  the  loss  is  from  the  negligence 
of  the  carrier,  the  shipper  may  recover  the  full  value  of  the 
property  destroyed.^^ 

§  512.  Limiting  liability  as  to  amount. — The  liability  of 

the  common  carrier  at  the  common  law  as  an  insurer  of  the 
goods  of  the  shipper  creates  a  privilege  in  the  shipper  amount- 
ing to  an  interest  which,  for  a  consideration,  he  can  no  doubt 
waive,  and  the  law  permitting  limitation  of  liability  has  its 
foundation  rather  in  the  idea  of  waiver  of  privilege  than  in  the 
theory  of  special  contract  between  the  parties.  Upon  the  theory 
that  the  limitation  is  a  waiver  of  a  legal  right,  it  would  seem 
to  follow  that  for  a  valuable  consideration  the  shipper  could 
limit  the  amount  to  be  recovered  for  the  property  in  case  of  loss. 
We  are  aware  that  there  are  writers  who  have  laid  down  the 
doctrine  that  these  contracts  of  limitation  ought  not  to  be  sanc- 
tioned, for  the  reason  that  if  the  carrier  has  the  privilege  to 

Barle,   17  R.   I.   441,   14   L.   R.   A.  In     Cleveland,     etc.     R.     Co.     v. 

433,   and  notes   for   discussion   in  Druten,    cited    above,    the    court 

holdings  of  different  states.  very  fully  discusses  the  question 

19  Conflict  of  Laws — Carriers  of  involved,    noting   and   holding   as 

Goods;     Contracts    Limiting    Lia-  applicable  the  two  commonly  ac- 

bility.     Cleveland,   etc.,   R.   Co.   v.  cepted     principles     governing     in 

Druien,    118   Ky.    237,    where    the  such  cases,  viz:    that  the  law  of 

subject  is   discussed   and   authori-  the    place    of    the    contract    will 

ties  cited.     For  a  full   discussion  govern,  and  that  the  parties  must 

of  the  principle  and  the  authori-  have  so  presumed  in  making  the 

ties,  see  notes  to  case  above  cited  contract,    citing   The   Kensington, 

in  4  Am.  &  Eng.  Ann.  Cases  1106.  183  U.  S.  263,  46  L.  Ed.  190. 


516  CARRIERS.  [§    512. 

limit  the  value  to  be  recovered,  in  ease  of  loss,  to  a  less  amount 
than  the  property  is  worth,  upon  the  same  course  of  reasoning 
the  entire  liability  for  damages  might  be  waived;  that  is  to  say, 
if  his  liability  could  be  limited  to  a  recovery  of  nine-tenths  of  the 
value  of  the  property,  it  might  be  limited  to  four-fifths,  if  to 
four-fifths,  then  to  one-half,  and  if  to  one-half  he  might  be  en- 
tirely absolved  from  all  liability.  It  may  be  said,  however,  on  the 
other  hand,  that  the  right  to  recover  from  the  shipper  as  an  in- 
surer of  the  property,  being  an  interest  owned  and  controlled  by 
the  shipper  and  of  value  to  him,  may  be  disposed  of,  as  any  other 
interest,  for  a  valuable  consideration  agreed  upon  between  the 
parties.  It  is  conceded,  of  course,  that  for  negligence  the  car- 
rier is  liable.  That  question  is  involved  in  the  limitation  even 
by  express  contract.  It  will  also  be  remembered  that  the  rules 
of  construction  that  are  adopted  governing  these  contracts  are 
favorable  to  the  shipper.  In  Judson  v.  Western  B.  Co.^'^  the 
court  say :  ' '  To  this  extent,  the  doctrine  that  a  carrier  may  limit 
or  modify  his  liability  seems  to  be  most  just  and  reasonable. 
Inasmuch  as  the  rule  of  law  which  holds  the  carrier  to  the  re- 
sponsibility of  an  insurer,  except  in  certain  special  cases,  is 
founded  in  a  policy  which  is  designed  solely  for  the  security  and 
benefit  of  the  owner  of  goods,  there  can  be  no  sufficient  reason 
for  regarding  the  rule  as  absolutely  inflexible  or  irrepealable, 
when  the  party  in  whose  favor  it  will  operate,  directly  or  by 
necessary  implication,  consents  to  waive  it,  or  agrees  to  an  es- 
sential modification  of  his  own  rights  under  it."-^  And  so  it 
may  be  said  that  according  to  the  great  weight  of  modern  au- 
thority in  this  country,  a  valid  contract  limiting  the  liability  of 
the  carrier  to  a  certain  agreed  amount  or  valuation  of  the  prop- 
erty carried  may  be  made  where  it  is  just  and  reasonable  in  its 
terms,  and  where  the  consideration  is  a  reduced  rate  of  freight.-^ 


20  Allen    (Mass.),  486,  490.  Brie  &  W.   Trans.   Co.,   117  U.   S. 

21  Fay  V.  Steamer  New  World,  1  314. 

Cal.  348;   Lawrence  v.  N.  Y.  B.  &  -'2  Richmond,     etc.     R.     Co.     v. 

P.  Co.,  36  Conn.  63;  Chicago,  R.  I.  Payne,  86  Va.  481,  6  L.  R.  A.  849; 

&    P.   R.    Co.    V.    Harman,    17    111.  Railway  Co.  v.  Manchester  Mills, 

App.  640;   Belger  v.  Dinsmore,  51  88    Tenn.    653;    Brown   v.    Cunard 

N.  Y.  166.     And  a  stipulation  that  S.  S.  Co.,  147  Mass.  58;   Squire  v. 

the   value   of   the   goods   shall    be  Western  Union  Tel.  Co.,  98  Mass. 

estimated  at  the  place  of  shipment  237;    Steers  v.  Liverpool,  etc.  Co., 

held  valid  in  Phoenix  Ins.  Co.  v.  57  N.  Y.  1;  Missouri,  etc.,  R.  Co. 


§  513.]      CONTRACTS TRANSPOETATlUN  OF  GOOD.-'.  517 

§  513.  The  consideration  of  contracts  limiting  liability. — The 
consideration  supporting  the  contract  limiting  the  liability  of 
the  common  carrier  is  not  at  all  times  clear,  and  there  has  been 
more  or  less  discussion  upon  the  subject  and  not  the  utmost 
harmony  among  authors  and  courts.  On  the  one  hand  it  is  con- 
tended by  some  writers,  and  they  are  supported  by  the  decisions 
of  some  of  the  courts,  that  ''the  parties  being  left  free  to  make 
their  own  contract,  and  having  agreed  that  in  consideration  of 
the  payment  of  a  certain  price  by  one,  certain  services,  upon 
stipulated  terms  as  to  responsibility,  shall  be  performed  by  the 
other,  neither  can  allege  that  as  to  him  there  was  no  considera- 
tion. Such  is  the  general  rule  as  to  contracts,  and  no  reason  is 
seen  why  it  should  not  apply  to  those  between  carriers  and  their 
employers,  so  long  as  they  are  permitted  to  make  their  own 
terms."  This  is  the  language  of  Hutchinson  on  Carriers,-^  quot- 
ing from  the  opinion  of  the  court  in  York  Co.  v.  Central  Rail- 
way Co.:^^  "There  is  no  evidence  that  a  consideration  was  not 
given  for  the  stipulation.  The  company  probably  had  rates  of 
charges  proportionate  to  the  risk  they  assumed  from  the  nature 
of  the  goods  carried,  and  the  exception  of  the  losses  by  fire  must 
necessarily  have  affected  the  compensation  demanded.  Be  this 
as  it  may,  the  consideration  expressed  was  sufficient  to  support 
the  entire  contract  made. ' ' 

On  the  other  hand,  there  is  a  line  of  cases  holding  that  there 
must  be  some  consideration  moving  between  the  parties  support- 
ing the  particular  stipulation  limiting  the  liability.  We  think 
that  the  settled  rule  of  law,  gleaned  from  all  of  the  authorities, 
and  which  the  courts  in  their  later  decisions  seem  to  bear  out, 
is  this:  If  the  contract  is  not  objected  to,  but  accepted  by  the 
shipper,  the  courts  will  presume  that  there  was  a  valid  consid- 
eration for  the  stipulations  limiting  the  liability;  but  if  the 
shipper  refuses  to  accept  the  contract  for  the  reason  that  there 
is  no  consideration,  then  the  consideration  is  a  subject  of  proof, 
and  this  presumption  may  be  overcome  the  same  as  every  other 

V.    Patrick    (U.    S.   C.   C.   A.),   144  N.    E.    638.  Burden   of   proof   on 

Fed.  G32.     If  limitation  is  sought  tlie   carrier.  Hurst  v.    St.   Louis, 

to  be  made  in  receipt  of  the  car-  etc.   R.   Co.,  117   Mo.   App.    25,    94 

rier  for  the  goods,  the  stipulation  S.  W.  794. 

must  be  brought  to  the  attention  23  Hutchinson   on    Carriers,    sec. 

of  the  shipper.     Hood  Co.  v.  Am-  278. 

erican,   etc.   Co.,   191  Mass.   27,  77          24  3  Wall.  107. 


518  CARRIERS.  [§    518. 

mere  presumption.  And  if  the  proof,  when  the  consideration  is 
attacked,  shows  that  there  was  no  real  consideration  for  the 
stipulations  limiting  the  liability,  then  in  that  case  the  contract 
in  that  respect  must  fail. 

The  delivery  of  freight  for  carriage  and  the  pajonent  of  the 
rate  to  the  carrier  is  no  doubt  sufficient  to  support  the  contract 
for  carriage,  but  the  contract  under  discussion  is  more  than 
that:  it  is  another  and  distinct  undertaking;  it  is  the  giving  up 
or  the  waiver  of  a  right  which  the  shipper  undoubtedly  has, 
namely,  that  he  can  insist  upon  the  carrier  receiving  and  trans- 
porting his  freight  over  his  own  line  as  an  insurer  without  lim- 
iting his  common-law  liability  when  not  regulated  by  statute. 
Now,  for  the  waiver  of  this  privilege  it  would  seem  there  must 
be  a  consideration.  That  consideration  may  be  a  reduction  of 
freight  rates,  or  assuming  duties  of  forwarding  the  goods  be- 
yond the  carrier's  own  line,  or  the  offering  of  any  other  benefit 
which  he  is  not  legally  bound  to  bestow.  But,  in  our  judgment, 
there  must  be  some  distinct,  traceable  consideration  beyond  the 
mere  payment  of  the  usual  freight  rates  charged  to  all  shippers. 

It  has  also  been  held  "that  if  the  special  contract  recites  that 
in  consideration  of  reduced  rates  the  shipper  consents  to  a  lim- 
itation of  the  carrier's  liability,  and  it  is  shown  that  no  reduced 
rates  were  in  fact  allowed  the  shipper,  the  limitation  is  invalid 
as  being  without  consideration. ' '  -^ 

25  82  Tex.  608;  Gulf,  etc.  R.  Co.  bill  of  lading  under  which  they 
V.  Wright,  1  Tex.  Civ.  App.  402;  received  the  cotton.  It  was  alleged 
San  Antonio,  etc.  R.  Co.  v.  Bar-  and  admitted  that  the  carrier 
nett,  12  Tex.  Civ.  App.  321;  Du-  company  operated  a  line  of  road 
venick  v.  Mo.  Pac.  R.  Co.,  57  Mo.  from  the  point  where  the  cotton 
App.  550;  Southard  v.  Minneapo-  was  received  to  the  several  points 
lis  R.  Co.,  60  Minn.  382;  Mich.  of  consignment,  and  that  the  cot- 
Cent.  R.  Co.  V.  Hale,  6  Mich.  243.  ton  was  received  under  bills  of 
The  supreme  court  of  Arkansas,  lading  containing  provisions  to 
in  the  case  of  Little  Rock,  etc.  Co.  the  effect  that  they  should  not  be 
V.  Cravens,  57  Ark.  112,  have  dis-  liable  except  for  losses  occasioned 
cussed  this  question  very  thor-  by  their  negligence.  But  it  was 
oughly.  In  that  case  the  plaintiff  alleged  that  these  provisions  were 
sued  to  recover  the  value  of  cotton  void,  for  the  reason  that  they 
that  was  burned  without  fault  of  were  without  consideration,  un- 
the  defendants  while  they  held  it  fair,  unjust  and  unreasonable.  To 
for  shipment.  "The  defense  was  maintain  this  contention  the 
that  the  company  was  exempt  plaintiff  proved  that  the  railroad 
from  liability  by  the  terms  of  the  company    fixed    and    published    a 


§    513.]  CONTRACTS — TRANSPORTATION    OF    GOODS, 


519 


In  Wehmann  v.  Minneapolis  B.  Co."^^  the  court  say :  '  *  Such  a 
clause  (a  clause  stipulating  to  limit  liability)  to  be  of  force 
must  stand  as  a  contract  between  the  shipper  and  the  carrier, 
and  as  in  the  case  of  all  contracts  there  must  be  a  consideration 


uniform  rate  for  carrying  cotton 
between  the  points  in  question, 
and  that  his  shipments  were  made 
according  to  this  rate,  that  the 
carrier  company  furnished  to 
their  agents  at  the  point  of  ship- 
ment printed  forms  for  bills  of 
lading  that  were  uniform  in  their 
terms,  and  contained  the  pro- 
visions relied  upon  in  this  case, 
and  that  the  agent  had  no  au- 
thority to  receive,  and  would  not 
have  received,  the  cotton  except 
under  said  bills.  It  was  shown 
that  the  plaintiff  knew  that  the 
bills  contained  the  provisions  re- 
lied upon,  and  that  he  made  no 
objections  to  the  rate  fixed,  or 
to  the  provisions  contained  in  the 
bills."  It  was  held  in  this  case 
that  the  contract  relied  upon  was 
invalid.  In  Deming  et  al.  v.  Mer- 
chants' Cotton  Press,  etc.  Co.,  90 
Tenn.  306,  13  L.  R.  A.  518,  it  was 
held  that  "carriers  making  a 
through  contract  for  the  ship- 
ment of  merchandise,  whether 
through  an  initial  line  agreeing 
to  ship  beyond  its  own  road,  or 
through  a  transportation  company 
having  no  line  of  its  own,  but 
simply  authorized  to  ship  over 
connecting  lines,  may  insert  there- 
in a  fire-exemption  clause,  al- 
though no  offer  is  made  to  as- 
sume the  risk  for  additional  com- 
pensation, since  there  is  no  com- 
mon-law liability  to  make  the 
through  shipment."  "A  lower 
rate  of  freight,  or  some  other 
equivalent,  will  be  a  sufficient 
consideration  for  the  stipulation." 
Dillard  v.  Louisville  &  N.  R.  Co., 


2   Lea,    293;    York   R.   Co.   v.    III. 
Cent.  R.  Co.,  3  Wall.  107. 

26  58  Minn.  22,  59  N.  W.  546. 
The  court  of  West  Virginia  in 
Berry  v.  W.  Va.  R.  Co.,  44  W.  Va. 
538,  say:  "This  court  has  not  de- 
nied the  validity  of  the  contracts 
of  common  carriers  limiting  their 
liability,  but  it  has  held  that  they 
cannot  exempt  from  negligence  of 
the  carrier.  (Citing  cases.)  But 
in  these  cases  it  was  explicitly 
stated  that  there  must  be  a  valu- 
able consideration  for  such  spe- 
cial contract,  and  such  I  under- 
stand to  be  the  general  law."  Cit- 
ing Zouch  V.  Railroad  Co.,  36  W. 
Va.  524;  Brown  v.  Express  Co., 
15  W.  Va.  812;  Maslin  v.  Railroad 
Co.,  14  W.  Va.  180.  In  Baltimore, 
etc.  Co.  V.  Crawford,  65  111.  App. 
113,  it  was  held  in  substance  that 
a  provision  in  a  contract  of  ship- 
ment exempting  the  carrier  from 
liability  for  injury  occasioned  by 
fire  is  not  enforceable  unless  sup- 
ported by  a  reduction  of  charges, 
or  some  other  consideration;  and 
the  fact  that  free  transportation 
is  given  a  servant  of  the  shipper 
is  not  a  sufficient  consideration 
for  such  exemption  where  the  con- 
tract relieves  the  carrier  of  its 
common-law  duty  to  care  for  the 
stock  while  in  transit,  and  im- 
poses it  upon  the  shipper.  In 
Kellerman  v.  Kansas,  etc.  R.  Co., 
68  Mo.  App.  255,  it  was  held:  "In 
a  shipping  contract  the  considera- 
tion clause  read:  'In  considera- 
tion of  tariff  dollars  per  car,'  etc. 
held,  that  this  meant  the  tariff 
arranged  by  the  railroad  commis- 


520 


CAERIERS. 


[§  513. 


for  it.  One  exercising  the  employment  of  a  common  carrier  of 
goods  is  bound  to  receive  and  carry  such  (within  the  class  of 
goods  that  he  carries)  as  are  tendered  to  him  for  the  purposes, 
and,  in  the  absence  of  special  contract,  to  carry  them  with  the 


sion  according  to  the  law,  and 
was  not  a  reduced  rate  such  as  is 
necessary  to  furnish  the  consid- 
eration for  limiting  the  carrier's 
liability."  In  Stewart  v.  Cleve- 
land, etc.  R.  Co.,  21  Ind.  App.  218, 
52  N.  E.  89,  a  contract  limiting  a 
carrier's  liability  to  plaintiff  ex- 
pressed a  consideration  of  a  re- 
duced rate.  The  carrier  had  but 
one  form  of  contract,  but  also  had 
bills  of  lading.  In  plaintiff's  prior 
shipments  he  had  always  paid  the 
reduced  rate,  although  he  had  not 
always  signed  such  a  contract. 
The  evidence  showed  that  the  car- 
rier did  not  require  all  shippers 
to  sign  such  a  contract,  but  did 
not  show  what  i-ates  such  shippers 
received;  and  it  also  showed  that 
the  regulation  requiring  a  higher 
rate  in  the  absence  of  such  con- 
tract was  "not  practiced."  Held, 
that  the  contract  was  for  a  valid 
consideration.  In  Ward  v.  Mis- 
souri Pac.  Ry.  Co.,  158  Mo.  226,  it 
was  held  in  substance  that  a  con- 
tract of  shipment  of  goods  from 
one  state  to  another  stated  that 
the  rate  charged  was  special,  and 
given  in  consideration  of  a  lim- 
ited valuation  placed  on  the  goods, 
for  which  the  carrier  should  be 
liable.  The  evidence  showed  that 
the  rate  charged  for  shipment  was 
the  regular  rate.  Held,  that  the 
contract  of  shipment  did  not  limit 
the  consignee's  right  to  recover 
the  full  value  of  goods  lost  in 
transit,  and  the  fact  that  the  ship- 
per was  required  to  sign  a  stipu- 
lation that  the  carrier's  liability 
should     not     exceed     a     certain 


amount,  in  order  to  get  the  rate 
charged  plaintiff,  does  not  show 
that  the  rate  charged  was  not  the 
regular  rate.  But  see  Rubens  v. 
Ludgate  Hill  Steam  Co.,  20  N.  Y. 
S.  481,  where  the  court  held  to  a 
different  rule,  saying,  "there  still 
remains  a  subsidiary  question  as 
to  the  effect  of  the  failure  to  prove 
the  allegation  of  the  answer,  that 
the  consideration  for  these  exemp- 
tions and  exceptions  accorded 
to  the  defendant  was  the  low  rate 
of  freight  the  defendant  agreed  to 
accept  as  a  condition  to  its  release 
from  any  liability  for  loss  result- 
ing from  causes  exempted.  We  do 
not  think  that  such  failure  on  de- 
fendant's part  was  material  to  the 
disposition  of  the  case,  for  the 
reason  that  it  is  entirely  compe- 
tent for  the  parties  to  enter  into 
a  contract;  and  where  it  appears 
that,  in  consideration  of  a  stipu- 
lated sum,  the  carrier  agrees  to 
perform  certain  services  upon  con- 
dition of  certain  exemptions,  suffi- 
cient consideration  is  to  be  found 
in  the  carrier's  obligation  thus 
assumed  to  support  the  exemp- 
tions provided  for  in  the  contract. 
Were  there  a  statute  requiring  the 
carrier  to  transport  goods  at  cer- 
tain specified  rates,  another  ques- 
tion might  be  presented;  but,  in 
the  absence  of  any  such  statute  or 
law  binding  upon  the  carrier  to 
transport  at  certain  fixed  rates,  we 
can  see  no  good  reason  why  the 
shipper  and  carrier  may  not  enter 
into  a  contract  upon  such  terms 
and  conditions  as  may  be  agreed 
upon  between  them." 


§    514.]  CONTRACTS — TRANSPORTATION    OF    GOODS.  521 

full  common-law  liability  of  a  common  carrier.  His  receipt  of 
and  undertaking  to  carrj'^  them,  being  a  duty  imposed  on  him 
by  law,  is  not  a  consideration  to  support  such  special  contract. 
There  must  be  some  other.  That  is  generally  furnished  by  some 
concession  in  rates.  And  where  the  agreement  is  set  forth  in 
the  contract  for  carriage,  it  would  probably  be  presumed  that, 
in  a  case  where  parties  could  make  any,  there  was  some  such 
concession  as  a  consideration  for  relieving  the  carrier  of  part  of 
his  common-law  liabilit}^" 

§  514.  Option  to  the  shipper  to  accept  contract  limiting 

liability. — In  the  discussion  of  the  questions  arising  as  to  the 
right  of  the  carrier  to  limit  his  extraordinary  liability,  we  are 
confronted  with  the  other  rule  fixing  a  duty  upon  the  carrier 
to  receive  and  transport  the  freight  of  all  who  offer  it  for  trans- 
portation, if  within  the  line  of  their  carrier  business.  So,  the 
question  arises,  supposing  the  shipper  declines  to  accept  a  con- 
tract which  embraces  a  limitation  of  liability  upon  the  carrier? 
Supposing  he  demands  that  he  shall  have  the  benefit  of  that  in- 
surance which  the  common  carrier,  under  his  common-law  liabil- 
ity, is  held  to  be  obliged  to  give  to  the  shipper  ?  These  questions 
have  been  raised  and  met  by  the  courts,  and  it  has  been  held 
that  the  shipper  cannot  be  deprived  of  this  right  to  insurance 
which  the  common  law  required  of  the  carrier,  but  that  the  car- 
rier must  give  to  the  shipper  an  option  that  he  will  carry  his 
freight,  with  the  insurance  that  the  common-law  liability  gives 
to  the  shipper,  for  a  certain  rate  proportionate  to  the  risk  that 
is  undertaken  by  the  carrier,  or,  that  he  will  carry  it  for  a  less 
rate  in  consideration  of  a  limitation  of  liability  as  set  forth  in 
the  contract.  This  question  was  fairly  before  the  court  in  the 
case  of  Little  Rock,  etc.  E.  Co.  v.  Craven.^''  The  opinion  is  very 
full  and  the  principles  clearly  stated.  The  courts  holding  to  this 
doctrine  base  their  opinion  upon  the  principle  of  law  that  con- 
tracts obtained  from  the  shipper  limiting  the  liability  of  the 
carrier  must  be  fair,  reasonable  and  just,  and  at  the  same  time 
recognizing  the  unequal  ground  upon  which  the  parties  stand; 

27  57  Ark.  112,  18  L.  R.  A.  527.  ceive  and  transport  such   danger- 

A  carrier  receiving  blasting  pow-  ous    articles.      California    Powder 

der   for   transportation   can   insist  Works  v.  Atlantic  &  P.  R.  Co.,  113 

upon   such   terms   and   limitations  Cal.  229.  4  Am.  &  Eng.  R.  Cases 

of  common-law  liability  as  it  sees  (N.  S.)    301,  36  L.  R.  A.  648 
fit,  since   it  is  not  obliged  to   re- 


522  CAERIEE3.  [§■  514. 

the  shipper  often  being  compelled  to  accept  such  stipulations 
in  the  bill  of  lading  as  the  carrier  sees  fit  to  insert  in  order  to 
forward  his  commodity ;  that  he  is  not  really  left  to  his  own  free 
will  but  must  take  whatever  is  offered.  It  is  in  defense  of  the 
shipper's  right,  and  because  of  that  doctrine  of  public  policy 
which  has  been  so  frequently  alluded  to,  that  the  courts  take 
this  position,  and  it  would  seem  that  every  principle  upon  which 
the  law  of  contract  is  based  would  demand  that  there  should  be 
given  to  the  parties  an  option  of  free,  open  and  absolute  con- 
sent— a  consent  that  is  given  deliberately  and  from  choice  rather 
than  that  consent  which  is  forced,  and  given  because  there  is  no 
alternative. 

In  Louisville  &  N.  B.  Co.  v.  Gilbert,-^  where  it  was  shown 
that  a  railroad  company  had  made  no  reduction  in  its  freight 
rates  in  consideration  of  a  stipulation  in  a  bill  of  lading  exempt- 
ing it  from  loss  by  fire,  and  had  furnished  its  agents  with  no 
form  of  bill  of  lading  not  containing  a  fire  clause,  and  had  given 
to  their  agent  no  authority  to  submit  to  the  shipper  the  alterna- 
tive of  paying  a  higher  rate  for  a  shipment  with  the  common- 
law  responsibility  attaching  to  the  company,  it  was  held  that  the 
company  was  liable  for  goods  destroyed  by  fire,  though  its  offi- 
cers testify  that  the  company  had  no  higher  freight  rate  where 
the  limited  liability  clause  was  omitted  from  the  bill  of  lading, 
and  that  if  the  shipper  had  so  requested  permission  would  have 
been  given  the  shipper  under  a  contract  without  the  fire  clause 
in  it;  the  holding  of  the  court  being  upon  the  ground  that  the 
stipulation  was  unreasonable  and  unjust,  and  was  not  a  valid 
limitation  of  the  company's  liability  as  a  common  carrier. 

And  in  Atchison,  Topeha,  etc.  R.  Co.  v.  Dill,"^^  it  was  held  that 
a  carrier  cannot  exact,  as  a  condition  precedent  for  carrying 
stock  or  goods,  that  the  shipper  must  sign  a  contract  in  writing 
limiting  or  changing  the  common-law  liability,  and  that  where  a 
carrier  has  two  rates  for  carrying  stock  or  goods,  one  if  carried 
under  the  common-law  liability,  and  the  other  if  carried  under 
a  special  contract,  the  shipper  must  have  real  freedom  of  choice 

28  88  Tenn.  430.  only  part  way  to  the  destination, 

29  48  Kan.  210.  "A  stipulation  is  valid  where  it  has  a  rate  over 
in  a  through  bill  of  lading  of  non-  its  own  line  for  which,  if  required, 
liability  for  loss  by  fire  through  it  assumes  responsibilities  for  such 
the  whole  distance,  issued  by  a  loss."  Deming  v.  Merchants'  Cot- 
carrier    having    a    line    extending  ton  Press,  etc.  Co.,  90  Tenn.  306. 


§    515.]  CONTRACTS — TRANSPORTATION    OF    GOODS.  523 

in  making  his  selection  or  he  will  not  be  bound  by  the  special 
contract. 

§  515.  Contracts  must  be  reasonable,  fair  and  without  fraud. 
As  we  have  said,  the  parties  to  the  contract  limiting  the  liability- 
stand  upon  an  uneven  footing;  the  carrier  has  an  advantage 
over  the  shipper.  It  often  happens  that  the  shipper  is  com- 
pelled to  accept  a  very  different  contract  from  that  which  he 
would  desire,  and  hence  it  is  that  the  law  has  a  jealous  care  over 
the  rights  of  the  shipper  in  this  particular.  The  contract  must 
be  fair  and  reasonable,  and  if  it  is  clear  that  the  carrier  has 
made  unreasonable  demands  and  succeeded  in  obtaining  ad- 
vantage because  of  the  vantage  ground  he  occupies,  the  courts 
wiU  not  sustain  the  contract.  It  is  upon  this  principle  that  it 
has  been  held  that  the  shipper  shall  have  the  option  to  accept  a 
contract  of  limited  liability,  or  insist  upon  obtaining  from  the 
company  the  insurance  that  the  common  law  has  required  of 
the  carrier.  Certainly,  if  the  limitation  was  obtained  by  fraud 
it  would  be  void,  as  fraud  satiates  all  contracts.  The  question 
of  reasonableness  and  unreasonableness  is  one  of  fact  for  the 
jury,  under  proper  instructions  from  the  court,  and  so  it  may 
be  said  that  no  fixed  rule  can  be  laid  down  with  reference  to 
what  is  reasonable  and  what  is  unreasonable,  but  that  each  case 
must  stand  upon  its  own  facts. 

Where  the  shipper  of  cattle  had  an  agreement  with  the  car- 
rier as  to  their  shipment,  and  proceeding  upon  such  agreement 
loaded  the  cattle  into  the  carrier's  cars,  but  when  they  were  all 
loaded  and  the  cars  were  sealed  and  the  train  about  to  start  the 
agent  of  the  carrier  presented  another  contract  in  writing  to  be 
signed  by  the  shipper,  which,  while  it  contained  the  same  rate 
for  shipping  that  had  been  agreed  iTpon,  contained  other  stipu- 
lations differing  from  the  first  agreement,  which  contract  the 
shipper  signed  not  having  an  opportunity  to  look  it  over,  and 
knowing  that  unless  it  was  so  signed  the  cattle  would  not  be  sent 
forward,  the  court  held  that  the  contract  lacked  mutuality,  and 
if  unfair  could  not  be  enforced.  The  court  say:  "Under  this 
state  of  facts,  can  it  be  said  that  the  written  contract  in  question 
was  a  mutual  agreement,  and  that  the  minds  of  the  parties  had 
met  upon  its  essential  features  ?  "We  think  there  can  be  but  one 
answer  to  this  question,  notwithstanding  the  theory  of  some  au- 
thorities that  hold  that  an  execution  of  a  bill  of  lading  by  the 
shipper  with  restrictive  conditions  estops  him  from  denying  that 


524 


CARRIERS. 


[§  515. 


he  assented  to  its  terms.  In  cases  where  the  courts  have  so  held, 
it  appeared  that  the  execution  was  concurrent  with  the  delivery 
of  the  goods  for  shipment.  This  is  a  distinguishing  feature  from 
the  facts  of  this  case,  for  here  it  is  clearly  shown  that  the  goods 
had  been  delivered  to  the  carrier  and  received  by  it  previous  to 
the  time  the  written  instrument  was  signed  and  delivered.  But 
to  the  extent  that  the  doctrine  of  these  cases  may  be  opposed 
to  our  views,  we  think  they  should  in  reason  yield  to  the  princi- 
ples asserted  in  that  line  of  authorities  that  hold  that  where 
goods  are  delivered  to  a  carrier  under  a  verbal  contract,  not  lim- 
iting its  liability,  and  afterwards  an  instrument  limiting  the  car- 
rier's common-law  liability  is  delivered  or  executed,  it  must  be 
upon  the  knowledge  and  assent  of  the  shipper,  or  that  he  knew 
there  were  some  special  terms  imposed  upon  him  in  the  written 
instrument,  and  that  he  was  willing  and  content  to  accept  them 
without  examination. ' '  ^° 

In  Simons  v.  Great  Western  B.  Co.^^  it  was  proved  on  the  part 
of  the  plaintiff  ''that  when  asked  by  a  clerk  of  defendant's  at 
the  time  the  goods  were  delivered  at  the  company's  w^arehouse 


30  M.,  K.  &  T.  Ry.  Co.  v.  Carter, 
9  Tex.  App.  685;  Exp.  Co.  v.  Stet- 
taners,  61  111.  186;  Railway  Co.  v. 
Reynolds,  17  Kan.  254;  Railway 
Co.  V.  Boyd,  91  111.  271;  Bostwick 
V.  Railway  Co.,  45  N.  Y.  715; 
Gaines  v.  Transp.  Co.,  28  Ohio  St. 
437;  Gott  v.  Dinsmore,  111  Mass. 
52;  Railway  Co.  v.  Jury,  111  U. 
S.  591,  592;  Railway  Co.  v.  Mfg. 
Co.,  16  Wall.  324;  Navigation  Co. 
V.  Bank,  6  How.  382;  Railway  Co. 
V.  Barrett,  36  Ohio  St.  452;  Rail- 
way Co.  V.  Campbell,  36  Ohio  St. 
€58;  Transp.  Co.  v.  Leysor,  89  111. 
45;  Railway  Co.  v.  Cravens,  20 
S.  W.  803-807;  Railway  Co.  v. 
Lockwood,  17  Wall!  369;  Express 
Co.  V.  Moon,  39  Miss.  832;  Transp. 
Co.  V.  Dater,  91  111.  195;  Lever- 
ing V.  Transp.  Co.  42  Mo.  88;  Ex- 
press Co.  V.  Haynes,  42  111.  89; 
Express  Co.  v.  Spellman,  90  111. 
465;  Adams  v.  Buckland,  97  Mass. 
124.      Also    the    decisions    of    the 


House  of  Lords  in  Henderson  v. 
Stephenson,  L.  R.  Sc.  &  Div.  App. 
470;  Parker  v.  Railroad  Co.  (High 
Court  of  Justice),  25  S.  W.  97,  5 
Cent.  Law  Jour.  134,  3  Am.  & 
Eng.  Encyc.  of  Law,  859;  2  id. 
822;    2  Rorer  on  Railways,  1320. 

312  C.  B.  (N.  S.)  619;  Kansas 
City  V.  Simpson,  30  Kan.  645. 
"Where  a  horse  was  shipped  by 
rail  and  the  bill  of  lading  was 
signed  by  the  carrier  and  the 
agent  of  the  shipper,  and  pro- 
vided, among  other  things,  value 
not  to  exceed  oue  hundred  dollars, 
which  was  arbitrarily  inserted  in 
the  bill  of  lading  by  the  carrier, 
and  through  the  carrier's  negli- 
gence the  horse  was  injured,  held, 
in  an  action  by  the  shipper  for 
damages,  that  his  recovery  was 
not  limited  by  the  words  'value 
not  to  exceed  one  hundred  dol- 
lars' "  Hauce  v.  Wabash,  etc.  R. 
Co.,   56   Mo.   App.   476. 


§  516. J      CONTRACTS — TRANSPORTATION  OF  GOODS.  525 

to  sign  the  paper,  the  phiiiititf  expressed  his  unwillingness  to 
do  so,  inasmuch  as  he  could  not  see  to  read  it,  whereupon  the 
clerk  said  that  it  was  of  no  consequence,  and  that  the  signature 
was  a  mere  matter  of  form ;  and  that  the  plaintiff,  relying  upon 
that  assurance,  signed  the  paper,  it  was  held  that  upon  this  evi- 
dence the  jury  were  warranted  in  finding  that  the  goods  were 
not  delivered  to  the  company  to  be  carried  under  the  special 
contract. ' ' 

§  516.  The  contract,  how  made. — As  we  have  seen,  the  eon- 
tract  for  limiting  the  liability  of  the  carrier  must  be  a  special 
contract  between  the  shipper  and  the  carrier.  Generally,  it  is 
written  into  the  bill  of  lading  as  a  part  of  it,  but  it  need  not 
necessarily  be  so  written.  A  parol  or  verbal  contract  may  exist 
between  the  parties  and  be  binding.  The  contract  that  is  written 
is  not  always  signed  by  the  shipper.  Some  of  the  authorities 
have  required  that  it  should  be  so  signed,  but  the  weight  of  au- 
thority does  not  demand  that  it  shall  be  signed  by  the  shipper^ 
and  it  is  generally  held  that  the  acceptance  by  the  shipper  of  a 
bill  of  lading,  or  a  written  contract  limiting  the  liability  of  the 
carrier,  is  sufficient  to  complete  the  contract  between  the  parties, 
provided  there  is  no  fraud  or  unfair  dealing  on  the  part  of  the 
carrier. 

The  completion  of  the  contract  by  its  acceptance  by  the  ship- 
per has  come  to  be  favored  by  the  courts,  because  it  is  in  these 
days  a  matter  of  common  knowledge  and  well  understood  among 
shippers  that  it  is  the  habit  of  common  carriers  to  limit  their 
liability,  and  so  it  is  expected  by  every  shipper  that  certain  con- 
ditions and  stipulations  with  reference  to  the  liability  of  the 
carrier  will  be  written  or  printed  into  every  bill  of  lading.  So 
thoroughly  has  this  come  to  be  understood  that  the  courts  have 
gone  so  far  as  to  hold  that  it  would  not  be  material  to  prove,  in 
a  case  where  such  a  contract  was  involved,  that  the  shipper  did 
not  read  the  bill  of  lading  before  accepting  it.  And  where  a 
shipper  of  goods  filled  out  a  blank  receipt  contained  in  a  book 
previously  furnished  by  an  express  company  for  his  use,  and 
obtained  the  signature  of  the  company's  agent  thereto  upon  the 
delivery  to  the  company  of  a  package  for  transportation,  the 
court  held  that  the  shipper  was  presumed  to  know  the  contents 
of  the  receipt,  and  if  he  received  such  receipt  without  objection, 
his  consent  to  its  conditions  will,  in  the  absence  of  fraud,  be 
conclusively  presumed.     The  court  say:  "The  plaintiff  under- 


526  CARRIERS.  [§■  516. 

stood  it  to  be  the  shipping  contract,  and  in  the  absence  of  fraud, 
by  receiving  it  without  objection,  he  is  conclusively  presumed 
to  consent  to  its  conditions.  It  is  now  generally  held  that  the 
responsibilities  imposed  on  the  carrier  of  goods  by  the  common 
law  may  be  restricted  and  qualified  by  express  stipulation  where 
such  stipulation  is  just  and  reasonable;  and  a  stipulation  that 
the  carrier  shall  be  informed  as  to  the  value  of  goods  delivered 
to  him  for  carriage  as  affecting  the  risk  and  degree  of  care  e- 
quired  is  clearly  reasonable. ' '  ^^  But  the  acceptance  of  the  bill 
of  lading  with  the  contract  limiting  the  liability  of  the  carrier 
is  held  not  to  estop  the  shipper  from  denying  its  validity  upon 
the  ground  of  its  unreasonableness,  because  of  the  unequal  foot- 
ing of  the  parties  to  the  contract.^^ 

In  Grace  v.  Adams  et  al.^^  it  appeared  that  the  plaintiff  deliv- 
ered to  the  Adams  Express  Company,  as  common  carriers,  at 
Wilmington,  a  package  containing  $150  directed  to  one  Corbett 
in  Massachusetts ;  that  at  the  same  time  the  express  company  de- 
livered to  the  plaintiff  a  bill  of  lading  containing  the  stipulation 
that  the  company  would  not  be  liable  in  any  manner  or  to  any 
extent  for  any  loss,  damage  or  detention  of  such  package,  or  of 
its  contents  or  any  portion  thereof,  occasioned  by  danger  of  rail- 
road transportation,  or  ocean  or  river  navigation,  or  by  fire,  etc. 
The  package  was  shipped  and  was  accidentally  burned  with  the 
ship  that  conveyed  it.  It  also  appeared  that  the  plaintiff  when 
he  received  this  bill  of  lading  did  not  read  it.  The  court  say: 
' '  The  receipt  was  delivered  to  the  plaintiff  as  the  contract  of  the 
defendants;  it  is  in  proper  form,  and  the  terms  and  conditions 
are  expressed  in  the  body  of  it  in  a  way  not  calculated  to  escape 

32Durgin   v.   Am.   Express   Co.,  3*  100  Mass.  505;  Rice  v.  Dwight 

€6  N.  H.  277,  9  L.  R.  A.  452;  Mer-  Mfg.    Co.    2    Cush.    80;    Lewis    v. 

rill   V.   Am.    Exp.    Co.,    62   N.    H.  Great  Western  R.  Co.,  5  H.  &  N. 

514;    Grace   v.   Adams,    100   Mass.  67;    Squire  v.  New  York  Cent  R. 

505.  Co.,     98     Mass.     239;     Rubens    v. 

33  Pacific    Coast     S.     S.     Co.     v.  Ludgate  Hill   S.   S.  Co..  20  N.   Y. 

Bancroft-Whitney     Co.,     94     Fed.  S.  481 ;  Toy  v.  Long  Island  Co.,  56 

180,  held  that  "A  shipper  is  not  N.  Y.  S.  182.     See  Cent.  R.  Co.  v. 

esopped  to  deny  the  validity  of  a  Hasselkus,   91   Ga.    382,    17    S.   E. 

provision   of  a  bill   of  lading  on  838,  where  it  was  held  that  "mere 

the    ground    of   its    unreasonable-  acceptance   of   the   bill   of   lading 

ness,  since  he  does  not  stand  on  does    not    establish    the    shipper's 

an  equal  footing  with  the  carrier  assent     to     stipulations     limiting 

In  accepting  the  bill  of  lading."  the  carrier's  liability." 


§    517.]  CONTRACTS — TRANSPORTATION    OF    GOODS.  527 

attention.  The  alcceptance  of  it  by  the  plaitiff,  at  the  time  of  the 
delivery  of  his  package,  without  notice  of  his  dissent  from  its 
terms,  authorized  the  defendants  to  infer  assent  by  the  plain- 
tiff. It  was  his  only  voucher  and  evidence  against  the  de- 
fendants. It  is  not  claimed  that  he  did  not  know,  when  he  took 
it,  that  it  was  a  shipping  contract  or  a  bill  of  lading.  It  was 
his  duty  to  read  it.  The  law  presumes,  in  the  absence  of  fraud 
or  Imposition,  that  he  did  read  it,  or  was  otherwise  informed  of 
its  contents,  and  was  willing  to  assent  to  its  terms  without 
reading  it.  Any  other  rule  would  fail  to  conform  to  the  ex- 
perience of  all  men.  "Written  contracts  are  intended  to  pre- 
serve the  exact  terms  of  the  obligations  assumed,  so  that  they 
may  not  be  subject  to  the  chances  of  a  want  of  recollection  or  an 
intentional  misstatement.  The  defendants  have  a  right  to  this 
protection,  and  are  not  to  be  deprived  ^f  it  by  the  wilful  ot 
negligent  omission  of  the  plaintiff  to  read  the  paper."  The 
court  held  that  receiving  the  contract  without  dissent  dis- 
charged the  carrier  from  liability  for  loss  by  fire  not  caused  by 
his  own  negligence. 

§  517.  Contract  limiting  the  time  in  which  to  present  claim 
or  commence  suit. — The  law  recognizes  that  there  are  reasons 
for  upholding  contracts  containing  a  limitation  as  to  the  time  in 
which  the  shipper  must  present  his  claim,  or  bring  suit  for  it, 
and  it  seems  to  be  the  general  consensus  of  opinion  of  the  courts 
that  the  claim  should  be  presented  within  a  reasonable  time,  and 
that  therefore  a  limitation  clause  in  the  contract  which  is  rea- 
sonable as  to  time  will  be  upheld.  It  seems  that  this  rule  has  its 
foundation  in  justice  and  good  judgment. 

The  great  bulk  of  business,  as  is  well  understood,  is  done  by 
railroad  and  steamship  companies  handling  vast  amounts  of 
freight  in  every  country  and  upon  every  coast.  It  is  therefore 
no  more  than  reasonable  that  these  companies  which  are  com- 
pelled to  act  through  their  numerous  agents  and  servants,  who 
alone  know  of  the  circumstances  of  the  loss  or  injury  to  the 
property,  and  upon  whom  the  company  must  depend  to  trace  the 
goods  that  are  lost  and  to  restore  them,  should  be  protected  in 
their  stipulations  limiting  the  time  when  claim  should  be  pre- 
sented. Upon  these  servants,  too,  the  carrier  must  necessarily  de- 
pend for  testimony  as  to  the  facts  sustaining  his  defense  in  case 
suit  is  commenced.  To  say  that  stipulations  limiting  the  time 
for  commencement  of  suits  to  a  reasonable  period  are  not  to  be 


528  CARRIERS.  [§    517. 

upheld  would  often  amount  to  depriving  the  carrier  of  the  proofs 
necessary  to  his  defense,  and  necessary  to  give  to  the  court  and 
the  jury  facts  that  are  peculiarly  within  the  knowledge  of  the 
agents  and  servants  of  the  common  carrier.  Mr.  Justice  Strong, 
in  Express  Co.  v.  Caldwell,^^  said:  "A  common  carrier  is 
always  responsible  for  his  negligence  no  matter  what  his  stipu- 
lations may  be.  But  an  agreement  that,  in  case  of  failure  by  the 
carrier  to  deliver  the  goods,  a  claim  shall  be  made  by  the  bailor, 
or  by  the  consignee,  within  a  specified  period,  if  that  period  be  a 
reasonable  one,  is  altogether  of  a  different  character.  It  con- 
travenes no  public  policy.  It  excuses  no  negligence.  It  is  per- 
fectly consistent  with  holding  the  carrier  to  the  fullest  measure 
of  good  faith,  of  diligence,  and  of  capacity,  which  the  strictest 
rules  of  common  law  ever  required.  And  it  is  intrinsically  just 
as  applied  to  the  present  case.  The  defendants  are  an  express 
company.  We  cannot  close  our  eyes  to  the  nature  of  their  busi- 
ness. They  carry  small  parcels,  easily  lost  or  mislaid,  and  not 
easily  traced.  They  carry  them  in  great  numbers.  Express 
companies  are  modem  conveniences,  and  notoriously  they  are 
very  largely  employed.  They  may  carry,  they  often  do  carry, 
hundreds,  even  thousands,  of  packages  daily.  If  one  be  lost,  or 
alleged  to  be  lost,  the  difficulty  of  tracing  it  is  increased  by  the 
fact  that  so  many  are  carried,  and  it  becomes  greater  the  longer 
the  search  is  delayed.  If  a  bailor  may  delay  giving  notice  to 
them  of  a  loss,  or  making  a  claim  indefinitely,  they  may  not  be 
able  to  trace  the  parcels  bailed,  and  to  recover  them,  if  accident- 
ally missent,  or  if  they  have  in  fact  been  properly  delivered. 
With  the  bailor  the  bailment  is  a  single  transaction  of  which  he 
has  full  knowledge;  with  the  bailee,  it  is  one  of  a  multitude. 
There  is  no  hardship  in  requiring  the  bailor  to  give  notice  of  the 
loss,  if  any,  or  make  a  claim  for  compensation  within  a  reasonable 
time  after  he  has  delivered  the  parcel  to  the  carrier.  There  is 
great  hardship  in  requiring  the  carrier  to  account  for  the  parcel 
long  after  that  time,  when  he  has  had  no  notice  of  any  failure  of 
duty  on  his  part,  and  when  the  lapse  of  time  has  made  it  dif- 

35  21  Wall.  264,  268;    St.  Louis,  525;    Cleveland,    etc.    Co.   v.    New- 

etc.    Co.    V.    Hurst,    67    Ark.    407;  lin,  74  111.  App.  638;    Cox  v.  Ver- 

Murris  v.  New  H.  Steamboat  Co.,  mont  Cent.  R.  Co.,  170  Mass.  129, 

62    N.    Y.    S.    474;     Norfolk,    etc.  49  N.  E.  97;   Popham  v.  Barnard, 

R.    Co.    V.    Reeves;     97    Va.    284;  77  Mo.  App.  619 
Brown   v.    Railroad   Co.,   100   Ky. 


§    519.]  CONTRACTS — TRANSPORTATION    OF    GOODS.  529 

ficult,  if  not  impossible,  to  ascertain  the  actual  facts.  For  thes-e 
reasons  such  limitations  have  been  held  valid  in  similar  con- 
tracts, even  when  they  seem  to  be  less  reasonable  than  in  the  con- 
tracts of  common  carriers." 

§  518.  Contract  limiting  liability  need  not  be  in  writing. — 
While  the  contract  limiting  the  liability  must  be  a  special  one, 
it  need  not  be  in  writing;  it  may  be  oral.  Whether  written  or 
oral  it  must  be  clear  and  explicit,  and  well  understood  so  that  it 
can  be  fully  proven.  If  the  contract  be  oral,  it  may  be  proven 
by  any  competent  evidence  that  will  show  its  existence  and 
terms. 

Mr.  Justice  Campbell,  in  Am€nca7i  Trans.  Co.  v.  Moore,^^  said : 
' '  While  it  is  true  that  it  devolves  upon  a  carrier  to  show  affirm- 
atively the  terms  of  any  contract  which  lessens  his  common- 
law  liability,  yet  that  fact  is  to  bo  proved,  like  any  other,  by  any 
pertinent  evidence.  If  in  writing,  the  writing  must  be  shown; 
but  if  by  parol,  there  is  no  rule  which  requires  different  proof 
from  that  which  would  establish  any  other  contract.  It  does 
not  matter  that  the  evidence  is  conflicting,  for  in  civil  cases 
the  jury  must  always  decide  upon  the  weight  of  evidence;  and 
there  is  no  rule  (except  where  turpitude  or  illegality  is  in  issue) 
which  requires  one  contract  to  be  proven  by  more  or  different 
testimony  than  another.  The  jury,  in  each  case,,  must  be  sat- 
isfied that  a  certain  contract  exists;  and,  if  satisfied,  that  is 
sufficient. ' ' 

The  usual  rules  of  evidence  obtain  in  respect  to  written  and 
oral  contracts,  in  this  case  as  in  others;  that  is  to  say,  if  the 
contract  has  been  put  in  writing  by  the  parties,  it  cannot  be 
contradicted  by  parol  proof  of  the  various  oral  understandings, 
for  the  written  contract  will  be  held  to  have  merged  in  itself  all 
the  prior  oral  agreements  touching  the  same  subject;  and  when 
such  contract  does  not  run  counter  to  the  principles  we  have  al- 
ready discussed  that  might  avoid  or  modify  it,  the  contract  that 
is  written  will  stand  as  the  agreement  of  the  parties.^'^ 

§  519.  Construction  of  the  contract  limiting  liability. — As 
we  have  seen,  the  contract  limiting  the  liability  of  the  common 
carrier  is  virtually  a  waiver  of  rights  of  the  shipper.  The 
shipper,  however,  may  insist  upon  those  rights;  he  may,  as  we 

36  5  Mich.  368,  379.  rison,   19   111.   136;    Gould  v.   Hill, 

3T  Illinois  Cent.  R.  Co.  v.  Mor-      2  Hill   (N.  Y.),  623. 
34 


530  CARRIERS.  [§   520. 

have  seen,  insist  upon  the  shipment  of  his  goods  with  all  the 
liability  of  an  insurer  which  attaches  to  the  common  carrier  by 
the  rules  of  the  common  law;  for  it  is  conceded  that  this 
liability,  laid  upon  the  common  carrier  by  the  rules  of  the  com- 
mon law,  had  its  origin  in  public  policy.  The  contract  which 
limits  that  liability,  therefore,  is  not  only  a  waiver  of  the  rights 
of  the  shipper,  but  it  also  affects  and  changes  the  rule  which 
originated  in  public  policy.  It  may  be  further  said  that  these 
contracts,  although  they  may  be  supported  by  a  consideration 
moving  from  the  carrier,  are,  nevertheless,  largely  in  the  interest 
of  the  carrier.  Because  of  this  the  courts  have  with  great  un- 
animity— indeed,  without  dissent —  held  that  they  must  be 
strictly  construed,  and,  if  there  be  any  doubt  or  ambiguity,  the 
construction  should  favor  the  shipper. 

In  Fairbanks  &  Co.  v.  Cincinnati  B.  Co.^^  the  court  held  "that 
exemptions  in  favor  of  a  common  carrier  in  bills  of  lading  are 
to  be  strictly  construed  again&t  the  carrier,  and  any  doubt  or 
ambiguity  therein  isi  to  be  resolved  in  favor  of  the  shipper. 
And  when  the  particular  dangers  or  risks  against  which  the 
carrier  has  specifically  guarded  himself  in  this  receipt  are  fol- 
lowed by  more  general  and  comprehensive  words  of  exemption, 
the  latter  are  to  be  construed  to  embrace  only  occurrences 
ejusdem  generis  with  those  previously  enumerated,  unless  there 
is  a  clear  intent  to  the  contrary. ' '  ^^ 

§  520.  (2)  Contracts  implied  from  notice. — It  seems  to 

be  generally  conceded  by  the  courts  and  authorities  that  the 
carrier  cannot  limit  his  common-law  liability  by  a  mere  gen- 
eral notice. 

Chief  Justice  Bigelow,  in  Judson  v.  Western  B.  Co.,'^^  clearly 

38  47  U.  S.  App.  744,  38  L.  R.  A.  the  contract  of  a  common  carrier 
271;  Black  v.  Goodricli  Trans.  Co.,  limiting  his  responsibility  will 
55  Wis.  319,  42  Am.  Rep.  713;  not  be  construed  as  exempting  it 
Cream  City  R.  Co.  v.  Chicago,  from  liability  for  negligence, 
etc.  R.  Co.,  63  Wis.  93,  53  Am.  when  they  are  capable  of  other 
Rep.  267;  Little  Rock,  etc.  R.  Co,  construction;  the  rule  applies 
V.  Talbot,  39  Ark.  529.  both   to   carriers   of   persons   and 

39  Hutchinson  on  Carriers  (2d  goods."  "The  contract  limiting 
ed.),  275,  276;  Hawkins  v.  Great  liability  must  be  fairly  obtained. 
Western  R.  Co.,  17  Mich.  57,  97  must  be  just  and  reasonable." 
Am.  Rep.  179;  The  Caledonia,  157  Louisville  &  N.  R.  Co.,  v.  Gilbert, 
U.   S.  124.     In  Kennedy  v.  N.  Y.  88  Tenn.  430. 

C.  &  H.  R.  R.  Co.,  125  N.  Y.  422,  *o  6  Allen,  486,  490,  83  Am.  Dec. 

it   was  held:    "General  words  in      646;    McMillan   v.   Michigan,   etc. 


§    520.]  CONTRACTS — TRANSPORTATION    OF    GOODS.  531 

states  the  prevailing  doctrine  in  this  country.  He  says:  "But 
it  is  a  very  different  proposition  to  assert  that  a  common  car- 
rier may  escape  his  legal  liability  or  materially  change  it  by 
general  notice  to  all  persons  that  he  will  not  be  responsible 
for  the  loss  or  injury  of  property  intrusted  to  his  custody,  or 
only  liable  therefore  under  such  conditions  and  limitations  as 
he  may  think  proper  to  impose.  A  common  carrier  is  in  a 
certain  sense  a  public  servant,  exercising  an  employment  not 
merely  for  his  own  emolument  and  advantage,  but  for  the 
convenience  and  accommodation  of  the  community  in  which  he 
pursues  his  calling.  The  law  imposes  upon  him  certain  duties 
and  responsibilities  different  from,  and  greater  than,  those 
which  attach  to  an  occupation  of  a  purely  private  nature,  in 
regard  to  the  conduct  of  which  the  public  have  no  interest,  and 
which  can  be  carried  on  at  the  option  or  according  to  the  plea- 
sure of  the  person  who  is  engaged  in  it.  A  common  carrier  can- 
not legally  refuse  to  transport  property  of  a  kind  which  comes 
within  the  class  which  he  usually  carries  in  the  course  of  his 
employment,  if  it  is  tendered  to  him  at  a  suitable  time  and  place, 
with  an  offer  of  a  reasonable  compensation.  Like  an  innkeeper, 
he  is  obliged  to  exercise  his  calling  upon  due  request  under  pro- 
per circumstances,  and  is  liable  to  an  action  for  damages  if  he 
wrongfully  refuses  to  do  so.  A  legal  obligation  rests  upon  him 
to  assume  the  duty  which  he  holds  himself  out  as  ready  to  per- 
form, and  a  correlative  right  belongs  to  the  owner  of  goods  to 
ask  for  and  require  their  reception  and  transportation  upon  the 
terms  of  liability  fixed  and  defined  by  the  established  rules  of 
law.  The  carrier  has  not  the  option  to  accept  or  refuse  the  car- 
riage of  the  goods  at  his  pleasure ;  but  the  person  seeking  to  have 
them  transported  can  choose  whether  they  shall  be  carried  with- 
out any  restriction  of  the  carrier's  duty  as  prescribed  by  law,  or 
whether  he  will  waive  a  portion  of  his  rights,  and  consent  to  a 
modification  of  the  legal  liability  which  attaches  to  the  carrier. 
Such  being  the  legal  relation  which  subsists  between  a  common 
carrier  and  his  employer,  it  certainly  would  be  inconsistent  with 
it  to  hold  that  a  carrier,  by  a  mere  notice  brought  home  to  the 
owner  of  goods  intrusted  to  his  care  that  he  did  not  intend  to 

R.   Co.,   6  Mich.   79,   111;    GkJtt  v.  Cent.  R.  Co.  v.  Frankensberg,  54 

Dinsmore,    111    Mass.    45;     Fille-  111.    88;    Davidson    v.    Graham,    2 

brown    v.    Grand    Trunk    R.    Co.,  Ohio    St.    131;    Brown   v.    Adams 

5.^,  Me.  462,  92  Am.  Rep.  606;   111.  Exp.  Co.,  15  W.  Va.  812. 


532  CARRIERS.  [§    520. 

assume  all  th.e  liabilities  of  liis  calling,  could  escape  or  mate- 
rially change  the  responsibility  which  the  law  annexes  to  the 
contract  of  the  parties.  It  would,  in  eJffect,  put  it  in  the  power 
of  the  carrier  to  abrogate  the  rules  of  law  by  which  the  exer- 
cise of  his  employment  is  regulated  and  governed.  Certainly 
such  a  notice,  even  if  shown  to  have  been  within  the  knowledge 
of  the  owner  of  goods,  would,  in  the  absence  of  evidence  of  his 
direct  assent  to  its  terms,  afford  no  sufficient  ground  for  the 
inference  that  he  had  voluntarily  agreed  without  any  considera- 
tion to  relinquish  and  give  up  the  valuable  right  of  having  his 
goods  carried  at  the  risk  of  the  carrier." 

The  leading  case  in  this  country  is  HolUster  v.  Nowlen,^^ 
where  the  question  was  fairly  before  the  court.  The  court  say: 
* '  The  principal  question  in  the  cause  arises  out  of  the  notice  given 
by  the  coach  proprietors  that  baggage  carried  by  the  telegraph 
line  would  be  at  the  risk  of  the  owner;  and  the  first  inquiry  is, 
whether  there  was  sufficient  evidence  to  charge  the  plaintiff  with 
a  knowledge  of  the  notice.  If  we  are  to  follow  the  current  of 
modern  English  decisions  on  this  subject,  it  cannot  be  denied 
that  there  was  evidence  to  be  left  to  a  jury,  and  upon  which  they 
might  find  that  the  plaintiff  had  seen  the  notice.  But  I  think  the 
carrier,  if  he  can  by  any  means  restrict  his  liability,  can  only  do 
so  by  proving  actual  notice  to  the  owner  of  the  property,  I 
agree  to  the  rule  laid  down  by  Best,  C.  J.,*^  when  the  courts  of 
"Westminster  Hall  had  commenced  retracing  their  steps  in  rela- 
tion to  the  liability  of  carriers,  and  were  endeavoring  to  get  back 
onto  the  firm  foundation  of  the  common  law.  He  said:  'If  coach 
proprietors  wish  honestly  to  limit  their  responsibility,  they  ought 
to  announce  their  terms  to  every  individual  who  applies  at  their 
office,  and  at  the  same  time  to  place  in  his  hands  a  printed  paper, 
specifying  the  precise  extent  of  their  engagement.  If  they  omit 
to  do  this,  they  attract  customers  under  the  confidence  inspired 
by  the  extensive  liability  which  the  common  law  imposes  upon 
carriers,  and  then  endeavor  to  elude  that  liability  by  some 
limitation  which  they  have  not  been  at  the  pains  to  make  known 
to  the  individual  who  has  trusted  them.' 

"I  should  be  content  to  place  my  opinion  upon  the  single 
ground  that,  if  a  notice  can  be  of  any  avail,  it  must  be  directly 
brought  home  to  the  owner  of  the  property ;  and  that  there  was 

41 19   Wend.   234.  42  Broke  v.  Pickwick,  4  Bing.  218. 


§    520.]  CONTRACTS — TRANSPORTATION    OP    GOODS.  533 

no  evidence  in  this  case  which  could  properly  be  submitted  to  a 
jury  to  draw  the  inference  that  the  plaintiff  knew  on  what  terms 
the  coach  proprietor  intended  to  transact  his  business.     .     .     , 

' '  The  rules  of  the  common  law  in  relation  to  common  carriers 
are  simple,  well  defined  and,  what  is  no  less  important,  well 
understood.  The  carrier  is  liable  for  all  losses  except  those  oc- 
casioned by  the  act  of  God  or  the  public  enemies.  He  is  regard- 
ed as  an  insurer  of  the  property  committed  to  his  charge,  and 
neither  destruction  by  fire,  nor  robbery  by  armed  men,  will  dis- 
charge him  from  liability.     ... 

"A  common  carrier  exercises  a  public  employment,  and  con- 
sequently has  public  duties  to  perform.  He  cannot,  like  the 
tradesman  or  mechanic,  receive  or  reject  a  customer  at  pleasure, 
or  charge  any  price  that  he  chooses  to  demand.  If  he  refuse  to 
receive  a  passenger  or  carry  goods  according  to  the  course  of  his 
particular  employment,  without  a  sufficient  excuse,  he  will  be 
liable  to  an  action;  and  he  can  only  demand  a  reasonable  com- 
pensation for  his  services  and  the  hazard  which  he  incurs.    .    .    . 

' '  The  law  in  relation  to  carriers  has  in  some  instances  operated 
with  severity,  and  they  have  been  charged  with  losses  against 
which  no  degree  of  diligence  could  guard.  But  cases  of  this  de- 
scription are  comparatively  of  rare  occurrence;  and  the  reason 
why  they  are  included  in  the  rule  of  the  common  law  is  not  be- 
cause it  is  fit  in  itself  that  any  man  should  answer  without  a 
fault,  but  because  there  are  no  means  of  effectually  guarding 
the  public  against  imposition  and  fraud  without  making  the  rule 
so  broad  that  it  will  sometimes  operate  harshly.  It  is  well  re- 
marked by  Best,  C.  J.,  that  'when  goods  are  delivered  to  the 
carrier  they  are  usually  no  longer  under  the  eye  of  the  owner; 
he  seldom  follows  or  sends  any  servant  with  them  to  their  place 
of  destination.  If  they  should  be  lost  or  injured  by  the  grossest 
negligence  of  the  carrier  or  his  servants,  or  stolen  by  them,  or  by 
thieves  in  collusion  with  them,  the  owner  would  be  unable  to 
prove  either  of  these  causes  of  loss.  His  witnesses  must  be  the 
carrier's  servant,  and  they,  knowing  that  they  could  not  be  con- 
tradicted, would  excuse  their  masters  and  themselves.     .     .     . 

"There  is  less  of  hardship  in  the  case  of  the  carrier  than  has 
sometimes  been  supposed :  for  while  the  law  holds  him  to  an  ex- 
traordinary degree  of  diligence,  and  treats  him  as  an  insurer  of 
the  property,  it  allows  him,  like  other  insurers,  to  demand  a  pre- 
mium proportioned  to  the  hazards  of  his  employment.    The  rule 


534  CARRIERS.  [§   520. 

is  founded  upon  a  great  principle  of  public  policy;  it  has  been 
approved  by  many  generations  of  wise  men;  and  if  the  courts 
were  now  at  liberty  to  make  instead  of  declaring  the  law,  it  may 
well  be  questioned  whether  they  could  devise  a  system  which,  on 
the  whole,  would  operate  more  beneficially.  I  feel  the  more  con- 
fident in  this  remark  from  the  fact  that  in  Great  Britain,  after 
the  courts  had  been  perplexed  for  thirty  years  with  various 
modifications  of  the  law  in  relation  to  carriers,  and  when  they 
had  wandered  too  far  to  retrace  their  steps,  the  legislature 
finally  interfered  and,  in  all  its  most  important  features,  re- 
stored the  salutarv  rule  of  the  common  law.     .     .     . 

"So  far  as  the  cases  have  proceeded  on  the  ground  of  fraud, 
and  can  properly  be  referred  to  that  head,  they  rest  on  a  solid 
foundation;  for  the  common  law  abhors  fraud,  and  will  not  fail 
to  overthrow  it  in  all  the  forms,  whether  new  or  old,  in  which  it 
may  be  manifested.  As  the  carrier  incurs  a  heavy  responsibility, 
he  has  a  right  to  demand  from  the  employer  such  information  as 
will  enable  him  to  decide  on  the  proper  amount  of  compensation 
for  his  services  and  risk,  and  the  degree  of  care  which  he  ought 
to  bestow  in  discharging  his  trust;  and  if  the  owner  give  an 
answer  which  is  false  in  a  material  point,  the  carrier  will  be  ab- 
solved from  the  consequences  of  any  loss  not  occasioned  by  negli- 
gence or  misconduct.     .     .     . 

* '  But  conceding  that  there  may  be  a  special  contract  for  a  re- 
stricted liability,  such  a  contract  cannot,  I  think,  be  inferred 
from  a  general  notice  brought  home  to  the  employer.  The  argu- 
ment is,  that  where  a  party  delivers  goods  to  be  carried  after 
seeing  a  notice  that  the  carrier  intends  to  limit  his  responsibility, 
his  assent  to  the  terms  of  the  notice  may  be  implied.  But  this 
argument  entirely  overlooks  a  very  important  consideration. 
Notwithstanding  the  notice,  the  owner  has  a  right  to  insist  that 
the  carrier  shall  receive  the  goods  subject  to  all  the  responsibili- 
ties incident  to  his  employment.  If  the  delivery  of  goods  under 
such  circumstances  authorizes  an  implication  of  any  kind,  the 
presumption  is  as  strong,  to  say  the  least,  that  the  owner  in- 
tended to  insist  on  his  legal  rights,  as  it  is  that  he  was  willing  to 
yield  to  the  wishes  of  the  carrier,     .     .     . 

"If  after  a  trial  of  thirty  years  the  people  of  Great  Britain, 
whose  interests  and  pursuits  are  not  very  dissimilar  to  our  own, 
have  condemned  the  whole  doctrine  of  limiting  the  carrier's 
liability  by  notice;  if  after  a  long  course  of  tegal  controversy 


§    520.]  CONTRACTS — TRANSPORTATION    OF    GOODS.  535 

they  have  restraced  their  steps,  and  returned  to  the  simplicity 
and  certainty  of  the  common-law  rule,  we  surely  ought  to  profit 
by  their  experience,  and  should  hesitate  long  before  we  sanction 
a  practice  which  not  only  leads  to  doubt  and  uncertainty  con- 
cering  the  rights  and  duties  of  the  parties,  but  which  encourages 
negligence,  and  opens  a  wide  door  to  fraud." 

It  may  be  said,  however,  that  there  are  certain  reasonable 
regulations  made  by  the  carrier  by  general  notice  which  are  con- 
sidered binding  upon  the  shipper ;  namely,  regulations  as  to  the 
manner  of  delivering  to  the  carrier  the  freight  for  transporta- 
tion, the  giving  to  the  carrier  notice  of  the  character  of  the 
freight  when  not  apparent,  or  the  value  of  the  property  that  is 
being  shipped. 

Judge  Cooley,  in  McMillan  et  al.  v.  M.  S.  &  N.  I.  B.  Co.,*^ 
quotes  with  approval  the  language  of  Greenleaf :  "  'It  is  now 
well  settled  that  a  common  carrier  may  qualify  his  liability  by  a 
general  notice  to  all  who  may  employ  him  of  any  reasonable  re- 
quisition to  be  observed  on  their  part  in  regard  to  the  manner 
of  delivery  and  entry  of  parcels,  and  the  information  to  be  given 
to  him  of  their  contents,  the  rates  of  freight,  and  the  like ;  as,  for 
example,  that  he  will  not  be  responsible  for  goods  above  the 
value  of  a  certain  sum,  unless  they  are  entered  as  such  and  paid 
for  accordingly. '  **  These  are  but  the  reasonable  regulations 
which  every  man  should  be  allowed  to  establish  for  his  business, 
to  insure  regularity  and  promptness,  and  to  properly  inform  him 
of  the  responsibility  he  assumes.  And  it  has  been  held  that 
notice  derived  from  the  usage  of  the  carrier  may  determine  the 
manner  in  which  he  is  authorized  to  make  delivery.^"^  But  be- 
yond the  establishment  of  such  rules  the  force  of  a  mere  notice 
cannot  extend.  Subject  to  reasonable  regulations,  every  man 
has  a  right  to  insist  that  his  property,  if  of  such  description  as 
the  carrier  assumes  to  convey,  shall  be  tranported  subject  to  the 
common-law  liability.  'A  common  carrier  has  no  right  to  refuse 
goods  offered  for  carriage  at  the  proper  time  and  place,  on  tend- 
er of  the  usual  and  reasonable  compensation,  unless  the  owner 
will  consent  to  his  receiving  them  under  a  reduced  liability ;  and 

43  16  Mich.  79,  110,  93  Am.  Dec.  «  Farmers'  &  Mechanics'   Bank 

208.  V.   Champlain   Trans.   Co.,   16   Vt. 

44Greenl.   Ev.,   sec.    235;    West-      52;    s.  o.,  18  Vt.  131,  and  23  Vt. 
em  Trans.  Co.  v.  Newhall,  24  111.       186. 
466. 


536  CARRIERS.  [§    521. 

the  owner  can  insist  on  his  receiving  the  goods  under  all  the  risks 
and  responsibilities  which  the  law  annexes  to  his  employment. '  *® 
The  fact  that  a  restrictive  notice  is  shown  to  have  been  actually 
received  or  seen  by  the  owner  of  the  goods  will  not  raise  a  pre- 
sumption that  he  assents  to  his  terms,  since  it  iS)  as  reasonable  to 
infer  that  he  intends  to  insist  on  his  rights  as  that  he  assents  to 
their  qualification;  and  the  burden  of  proof  is  upon  the  carrier 
to  establish  the  contract  qualifying  his  liability,  if  he  claims  that 
one  exists. ' '  " 

It  may  be  said,  however,  that  the  authorities  are  not  entirely 
harmonious  upon  this  question.  While  they  generally  hold  that 
a  general  or  published  notice  is  not  sufficient  from  which  a  con- 
tract limiting  liability  can  be  implied,  there  are  cases  that  go  so 
far  as  to  hold  that  when  the  notice  is  brought  home  to  the  ship- 
per, and  the  course  of  business  is  well  understood,  and  has  been 
often  acted  upon  without  question  by  the  shipper,  in  such  case 
it  may  be  binding  upon  the  shipper.*^ 

§  521,  Further  consideration. — By  way  of  summing  up 

the  question  of  limitation  of  liability  by  general  notice  and  draw- 
ing conclusions  from  what  has  already  been  said,  it  may  be  ob- 

46  Cole  V.  Goodwin,  19  Wend.  in  repudiating  a  principle  which 
251;  Jones  v.  Vorheis,  10  Ohio,  places  the  bailor  absolutely  jat 
145;  Bennett  v.  Button,  10  N.  H.  the  mercy  of  the  carrier,  whom 
487;  N.  J.  Nav.  Co.  v.  Merchants'  in  a  vast  majority  of  instances 
Bank,  6  How.  344;  Moses  v.  Bos-  he  cannot  but  choose  to  einploy." 
ton  &  M.  R.  Co.,  24  N.  H.  71,  See  also  Pa.  Cent.  R.  Co.  v. 
Kimball  v.  Rutland,  etc.  Co.,  26  Schwarzenberger,  45  Pa.  St.  208; 
Vt.  256;  Slocum  v.  Fairchild,  7  Farham  v.  Camden,  etc.  R.  Co., 
Hill,  292;  Dorr  v.  N.  J.  Steam  55  Pa.  St.  53.  It  has  been  held 
Navigation  Co.,  4  Sandf.  (N.  Y.)  in  Kentucky  "that  public  notice 
136,  11  N.  Y.  485;  Mich.  Cent.  R.  given  by  the  carrier  and  brought 
Co.  v.  Hale,  6  Mich.  243.  Above  home  to  the  knowledge  of  the 
cited  in  the  opinion  of  Cooley,  J.  shipper,   enters   into  the  contract 

47  N.  J.  Steam  Nav.  Co.  v.  Mer-  of  affreightment  so  far  as  the  car- 
chants'  Bank,  6  How.   344.  rier   has   right   to   impose   terms, 

48  Bingham  v.  Rogers,  6  W.  &  etc."  Orndorff  v.  Adams  Ex- 
S.  (Pa.)  495.  This  doctrine  was  press  Co.,  3  Bush  (Ky.),  195.  In 
questioned  in  Laing  v.  Colder,  8  North  Carolina  it  has  been  held 
Pa.  St.  479,  where  the  judge  in  that  notice  brought  to  the  knowl- 
delivering  the  opinion  says:  edge  of  the  owner  will  reason- 
"Were  the  question  an  open  one  ably  qualify  the  liability  of  the 
in  Pennsylvania,  I  should  for  carrier  in  certain  cases,  as,  that 
one  unhesitatingly  follow  them  they  will  not  be  liable  for  glass 
(meaning     contrary     authorities)  in   a   box   or  articles   of   unusual 


§    522.]  CONTRACTS — TRANSPORTATION    OF    GOODS.  537 

served :  First,  the  contract  for  carriage  as  to  the  liability  of  the 
carrier  is  fixed  by  the  common  law  except  as  modified  by  statute 
or  contract.  Second,  the  shipper  may  insist  that  there  shall  be 
no  modifications,  when  there  are  no  statutes  providing  for  it, 
and  that  the  carrier  shall  transport  his  freight  as  an  insurer. 
Third,  no  modification  can  be  made  by  the  mere  act  of  the  carrier 
alone.  Fourth,  the  contract  modifying  the  liability,  to  be  valid, 
must  have  a  consideration  to  sujpport  it. 

With  these  settled  principles  of  the  law  as  to  modifying  the 
common-law  liability  of  the  carrier,  what  conclusion  can  be 
drawn  as  to  the  effect  of  a  general  notice  ?  If  the  notice  is  post- 
ed up  in  conspicuous  places  or  published  and  circulated  through 
newspapers  or  other  public  means  and  made  as  public  as  pos- 
sible, it  could  not  possibly  partake  of  the  requisites  suggested. 
If  this  sort  of  notice  limits  the  liability,  the  shipper  would  be  de- 
prived of  his  right  to  ship  his  goods  so  as  to  take  advantage  of 
the  common-law  liability  of  the  carrier.  It  would  deprive  him 
of  that  right  we  have  seen  belongs  to  him,  to  insist  that  there 
should  be  no  modification  of  liability.  The  carrier  could  make 
his  own  terms,  and,  without  consulting  the  shipper,  could  deter- 
mine his  own  liability  to  suit  himself;  there  need  be  no  consid- 
eration and  no  assent.  To  hold  that  such  a  notice  could  modify 
liability  would  be  to  sweep  away  every  principle  that  has  been 
grounded  by  the  prevailing  authorities  and  decisions  in  this 
country. 

§  522.  General  notice  written  or  printed  upon  the  re- 
ceipt or  bill  of  lading. — The  authorities  do  not  seem  to  agree  as 
to  the  extent  of  limiting  the  liability  of  the  carrier  by  a  printed 
or  written  notice  upon  the  receipt  or  way-bill  given  the  shipper 
at  the  time  delivering  the  goods.  There  is  a  distinction  made 
by  the  courts  as  to  stipulations  written  in  the  bill  of  lading  limit- 
ing the  liability  and  signed  by  the  carrier  or  his  agent,  and  a 
general  notice  written  or  printed  upon  the  receipt  or  upon  the 
bill  of  lading  and  not  signed  by  any  person.     There  are  certain 

value     unless     informed     of     the  strict     liability.       Fillebrown     v. 

facts.     Smitli  v.   N.   Car.   R.   Co.,  Grand  Trunk  R.  Co.,  55  Me.  462; 

64  N.  C.  235.    And  in  Maine,  that  Little  v.  Boston,  etc.  Co.,  66  Me. 

notice  brought  home  to  the  owner  239.     See  the  strong  language  of 

of   goods  at  the   time  of  the   de-  Cowen,  J.,  in  Cole  v.  Goodwin,  19 

livery  for  shipment,   if  expressly  Wend.  260. 
or  impliedly  assented  to,  will  re- 


538  CARRIERS.  [§■  522. 

facts  which  should  be  taken  into  consideration  with  reference  to 
the  bill  of  lading.  First,  it  is  generally  understood  that  the 
carrier,  by  the  bill  of  lading,  seeks  to  limit  his  liability;  and 
further,  it  is  understood  that  there  is  a  place  on  or  part  of  the 
bill  of  lading  where  the  language  limiting  the  liability  is  gen- 
erally written  or  printed,  so  that  it  may  be  said  that  the  shipper 
would  look  to  this  part  of  the  bill  of  lading  for  the  stipulations 
limiting  the  liability,  and  when  they  are  written  here  and  signed 
by  the  carrier,  or  the  agent  of  the  carrier,  and  delivered  to  the 
shipper  at  the  time  the  goods  are  delivered  for  transportation, 
and  the  shipper  receives  the  bill,  he  is  presumed  to  have  ac- 
cepted these  stipulations  and  to  understand  the  contents  of  the 
bill.  But  it  is  very  different  when  the  instrument  delivered  is  a 
receipt  with  a  general  notice  written  or  printed  upon  it,  not 
signed,  or  when  it  is  a  general  notice  printed  upon  the  contract 
or  the  bill  of  lading  and  not  in  a  conspicuous  place,  and  not 
accepted  or  assented  to  by  the  shipper.  But  as  to  these  notices 
it  may  be  said  that  if  they  are  notices  printed  upon  the  receipt 
or  the  way-bill  in  such  a  way  and  so  conspicuous  as  to  bring  the 
contents  home  to  the  shipper,  and  the  notice  is  as  to  the  receiving 
of  the  goods  for  shipment,  and  is  reasonable  as  to  the  value  of 
the  goods,  and  the  amount  for  which  the  company  will  be  held 
liable,  such  cases,  it  seems,  will  be  held  to  be  valid.  It  is  upon 
the  theorj^  that  the  carrier  has  the  right  to  know  the  character 
of  the  freight  that  is  being  presented  for  shipment.  Is  it  gun- 
powder or  dynamite  or  dangerous  explosives  that  are  sought  to 
be  shipped  ?  If  so,  the  carrier  may  fix  his  terms  for  receiving  it, 
and  may  refuse  to  accept  it  under  the  common-law  liability.  Are 
the  packages  what  they  appear  to  be,  or  is  there  a  reasonable 
suspicion  that  they  contain  goods  secreted  within  them  of  very 
much  greater  value?  Are  they  goods  as  they  appear,  of  little 
value,  or  do  they  contain  hidden  from  view  among  other 
goods,  bank  bills,  gold  coin,  diamonds,  or  such  like  articles  as 
would  very  greatly  increase  the  rate  of  shipment  and  the  re- 
sponsibility of  the  carrier?  In  such  cases  there  can  be  no  doubt 
but  that  the  carrier  has  the  right  to  know  the  responsibility  he 
is  assuming;  and  along  this  line,  and  by  way  of  fixing  his  re- 
sponsibility in  such  cases,  he  may  give  notice  to  the  shipper  of 
certain  requirements  which  must  be  complied  with,  which  will 
be  binding  and  the  law  will  enforce.  But  if  the  notice  refers  to 
the  liability  of  the  carrier  in  transporting  the  goods,  where  there 


§    522.]  CONTRACTS — TRANSPORTATION    OF    GOODS.  539 

is  no  fraud  or  deception  in  the  delivering  or  the  receiving  of 
them  by  the  carrier,  such  liability  cannot  be  limited  by  notice 
upon  the  receipt  or  bill  of  lading  unless  assented  to  by  the 
shipper. 

It  was  said  by  the  supreme  court  of  New  Hampshire  in  Moses 
V.  Boston,  etc.,  R.  Co.:^^  "We  do  not  mean  to  hold  that  there 
are  no  cases  in  which  the  carrier  may,  by  notice,  define  and 
qualify  his  responsibility.  It  may  be  quite  reasonable  that  he 
should  insist  on  proper  information  as  to  the  value  of  the  article 
which  he  carries.  This  would  not  seem  to  be  any  infringement 
upon  the  principle  of  the  ancient  rule.  He  must  have  a  right  to 
know  what  it  is  that  he  undertakes  to  carry,  and  the  amount 
and  extent  of  his  risk.  We  can  see  nothing  that  ought  to  pre- 
vent him  from  requiring  notice  of  the  value  of  the  commodity 
delivered  to  him,  when,  from  its  nature,  or  the  shape  and  condi- 
tion in  which  he  receives  it,  he  may  need  the  information;  nor 
why  he  should  not  insist  on  being  paid  in  proportion  to  the 
value  of  the  goods,  and  the  consequent  amount  of  his  risk.'' 
And  in  Railroad  Go.  v.  Mfg.  Co.^^  the  supreme  court  of  the 
United  States,  in  an  opinion  by  Mr.  Justice  Davis,  discuss  this 
question,  after  quoting  with  approval  from  N.  J.  Steam  Naviga- 
tion Co.  V.  3Ierchants'  Bank,^'^  and  says:  "These  considerations 
against  the  relaxation  of  the  common-law  responsibility  by  pub- 
lic advertisements  apply  with  equal  force  to  notices  having  the 
same  object,  attached  to  receipts  given  by  carriers  on  taking  the 
property  of  those  who  employ  them  into  their  possession  for 
transportation.  Both  are  attempts  to  obtain  by  indirection  ex- 
emption from  burdens  imposed  in  the  interests  of  trade  upon 
this  particular  business.  It  is  not  only  against  the  policy  of  the 
law,  but  a  serious  injury  to  commerce,  to  allow  the  carrier  to  say 
that  the  shipper  of  merchandise  assents  to  the  terms  proposed  in 
a  notice,  whether  it  be  general  to  the  public  or  special  to  a  par- 
ticular person,  merely  because  he  does  not  expressly  dissent 
from  them.  If  the  parties  were  on  an  equality  in  their  dealings 
with  each  other  there  might  be  some  show  of  reason  for  assum- 
ing acquiescence  from  silence,  but  in  the  nature  of  the  case  this 
equality  does  not  exist,  and,  therefore,  every  intendment  should 
be  made  in  favor  of  the  shipper  when  he  takes  a  receipt  for  his 
property,  with  restrictive  conditions  annexed,  and  says  nothing, 

49  24  N.  H.  71,  9  L.  R.  A.  455.  ei  6  How.  344. 

BO  16  Wall.   (U.  S.)   318. 


540 


CARRIERS. 


[§  522. 


that  he  intends  to  rely  upon  the  law  for  the  security  of  his 
rights.  It  can  readily  be  seen,  if  the  carrier  can  reduce  his 
liability  in  the  way  proposed,  he  can  transact  business  on  any 
terms  he  chooses  to  prescribe.  The  shipper,  as  a  general  thing, 
is  not  in  a  condition  to  contend  with  him  as  to  terms,  nor  to  wait 
the  result  of  an  action  at  law  in  case  of  refusal  to  carry  uncon- 
ditionally. Indeed  such  an  action  is  seldom  resorted  to  on  ac- 
count of  the  inability  of  the  shipper  to  delay  sending  his  goods 
forward.  The  law  in  conceding  to  carriers  the  ability  to  obtain 
any  reasonable  qualifications  of  their  responsibility  by  express 
contract  has  gone  as  far  in  this  direction  as  public  policy  will 
allow.  To  relax  still  further  the  strict  rules  of  common  law  ap- 
plicable to  them,  by  presuming  acquiescence  in  the  conditions 
on  which  they  propose  to  carry  freight  when  they  have  no  right 
to  impose  them,  would,  in  our  opinion,  work  great  harm  to  the 
business  community.  The  weight  of  authority  is  against  the 
validity  of  the  kind  of  notices  we  have  been  considering.  And 
many  of  the  courts  that  have  upheld  them  have  done  so  with 
reluctance,  but  felt  themselves  bound  by  previous  decisions. ' '  ^^ 


52  York  Co.  V.  Cent.  R.  Co.,  3 
Wall.  107,  113.  "He  cannot  screen 
himself  from  liability  by  any 
general  or  special  notice,  nor  can 
he  coerce  the  owner  to  yield  as- 
sent to  a  limitation  of  a  respon- 
sibility by  making  exorbitant 
charges  when  such  assent  is  re- 
fused." The  supreme  court  of 
Illinois,  in  Merchants'  Dispatch, 
etc.  Co.  V.  Furthmann,  149  111. 
66,  where  there  was  written  upon 
the  back  of  the  receipt  for  the 
goods  delivered  the  following  no- 
tice: "The  within  mentioned 
goods  to  be  forwarded  under  the 
following  conditions,"  after  not- 
ing a  number  of  conditions,  say: 
"If  the  contention  of  appellant  is 
correct,  the  paper  of  May  4  is  a 
receipt  for  the  goods,  with  a  con- 
tract to  carry,  upon  certain  con- 
ditions printed  on  the  back  of  it, 
signed  by  no  one.  We  are  clearly 
of   the   opinion    that    such    a   re- 


ceipt should  not  be  given  the 
legal  effect  of  a  special  contract 
limiting  a  public  carrier's  com- 
mon-law liability.  No  good  rea- 
son can  be  shown  why,  if  the  in- 
tention is  to  so  contract  with  the 
shipper  in  good  faith,  the  condi- 
tions should  not  be  embodied  in 
the  contract  and  properly  signed, 
as  was  done  in  the  bill  of  lading 
dated  May  6,  and  this  we  under- 
stand to  be  in  harmony  with  the 
decisions  in  New  York.  There 
the  court  of  appeals  has,  as  be- 
fore stated,  held  that  where  the 
conditions  are  embodied  in  the 
receipt  or  bill  of  lading,  as  in 
Belger  v.  Dinsmore,  51  N.  Y.  166, 
the  acceptance  of  the  paper  is 
conclusive  evidence  of  the  fact 
that  the  shipper  knew  its  con- 
tents and  assented  thereto;  but 
we  have  been  able  to  find  no  de- 
cision of  that  court  giving  such 
a  construction  to  a  mere  receipt 


523.] 


CONTRACTS — TRANSPORTATION    OF    GOODS. 


541 


§  523.  Representations  of  the  shipper,  fraudulent  or  other- 
wise.— The  shipper  is  under  as  binding  an  obligation  as  the 
carrier  to  deal  fairly  and  honestly  in  making  the  shipment.  If 
his  attention  is  called  to  the  matter  of  value  or  contents  of  the 
package  he  must  state  truthfully  to  the  shipper  with  reference 


calling  attention  to  conditions  on 
the  back  of  it.  On  the  contrary, 
it  has  there  been  uniformly  held 
that  the  liability  cannot  he  re- 
stricted or  limited  by  notice, 
whether  brought  home  to  the 
shipper  or  not."  In  Indianapolis, 
etc.  Co.  V.  Cox,  29  Ind.  360,  95 
Am.  Dec.  640:  He  may  limit  his 
responsibility  by  notice  if  brought 
home  to  the  consignor  and  as- 
sented to  clearly  and  unequiv- 
ocally by  him.  Buckland  v. 
Adams  Exp.  Co.,  97  Mass.  124,  93 
Am.  Dec.  68.  But  this  assent  is 
not  to  "be  inferred  from  the  mere 
fact  that  knowledge  of  such  no- 
tice on  the  part  of  the  owner  or 
consignor  of  goods  is  shown.  The 
evidence  must  go  further  and  be 
suflBcient  to  show  that  the  terms 
on  which  the  carrier  proposed  to 
carry  the  goods  were  adopted  as 
the  contract  between  the  parties." 
The  burden  is  on  the  carrier  to 
show  a  restricted  liability,  and 
that  a  notice  to  that  effect  was 
received  or  seen  by  the  shipper  is 
not  sufficient;  his  assent  must  be 
shown.  McMillan  v.  Mich.  etc.  R. 
Co.,  16  Mich.  79,  93  Am.  Dec.  208; 
30  Am.  &  Eng.  R.  Cases,  12,  note; 
37  Am.  &  Eng.  R.  Cases,  477, 
note.  See  also  article  by  C.  C. 
Binney,  27  Am.  Law  Reg.  (N.  S.) 
628,  note;  Hutch,  on  Car.,  sec. 
256.  "However  this  may  be, 
when  the  knowledge  of  such  a 
regulation  of  the  carrier  in  the 
conduct  of  his  business  has  come 
to  the  shipper  only  by  notice  di- 
rectly conveyed  to  him  or  by  a 
previous  course  of  dealing,  there 


is  no  question  that  "when  the 
carrier,  in  the  very  contract  by 
which  he  undertakes  to  carry  the 
goods,  whether  it  be  in  the  form 
of  a  receipt  accepted  by  the 
shipper,  or  any  other  form  of  ex- 
press contract,  has  declared  that 
if  not  apprised  of  the  value  of  the 
thing  to  be  carried,  and  paid  for 
his  risk  accordingly,  he  will  be 
liable  only  to  a  certain  extent, 
the  shipper,  if  he  would  hold  him 
iu  case  of  loss  beyond  that  limit, 
must  inform  the  carrier,  whether 
the  inquiry  be  made  of  him  or 
not,  of  the  value  of  which  he 
wishes  him  to  assume  the  risk, 
and  must  compensate  him  accord- 
ingly. And  some  of  the  cases 
have  gone  so  far  as  to  assert 
that  where  the  liability  of  the 
carrier  is  thus  conditionally 
limited,  if  the  owner  of  the  goods 
of  greater  value  than  would  be 
ordinarily  indicated  by  the  box 
or  package  in  which  they  are 
contained,  delivers  them  to  the 
carrier  without  any  notice  of 
their  extraordinary  value  and 
without  paying  charges  on  them 
commensurate  therewith,  any 
attempt,  in  case  of  their  loss,  to 
impose  a  liability  upon  him  be- 
yond the  limit  prescribed  in  the 
contract  would  be  an  attempted 
fraud  upon  him,  and  that  even 
if  the  loss  were  shown  to  have 
been  the  result  of  negligence,  un- 
less it  were  of  so  gross  a  char- 
acter as  to  be  tanamount  to  a 
misfeasance,  the  carrier  would  be 
protected  by  the  terms  of  his 
receipt." 


542  CARRIERS.  [§'  524. 

to  these  matters,  and  if  he  does  not,  or  if  he  consents  to  the  ship- 
ping of  the  freight  upon  a  statement  of  a  limited  value  for  the 
purpose  of  receiving  a  lesser  rate,  in  case  of  loss  or  injury  to  the 
freight  he  will  be  estopped  from  claiming  that  the  goods  are  of 
greater  value  than  the  amount  stated  at  the  time  of  their  ship- 
ment. So  it  follows  that  if  the  statement  as  to  value,  or  the 
statement  as  to  contents  of  packages,  be  fraudulently  made  by 
deceit  and  misrepresentation  for  the  purpose  of  obtaining  a  less 
rate  for  their  transportation,  he  will  at  least  be  held  to  have 
assented  to  the  amount  stated  at  the  time  of  the  shipment;  and 
if  by  reason  of  his  deceit,  misrepresentation  and  falsehood,  goods 
are  taken  that  are  dangerous  and  that  require  particular  care  in 
transporting  them,  and  because  of  the  deception  of  the  shipper 
injury  results  to  the  carrier  by  reason  of  explosion  or  other  dam- 
age, in  such  case  the  shipper  would  be  liable  to  the  carrier.^^ 

§  524,  When  the  contract  limiting  liability  inures  to  the  ben- 
efit of  the  connecting  carrier. — Whether  the  contract  limiting 
the  common-law  liability  inures  to  the  benefit  of  a  connecting- 
carrier  depends,  it  seems,  upon  the  terms  and  extent  of  the  con- 
tract for  shipment.  If  the  contract  is  for  through  transporta- 
tion, it  is  generally  conceded  that  it  will  inure  to  the  benefit  of  all 
the  connecting  carriers,  but  if  it  is  simply  to  carry  goods  over 
the  line  of  road  of  the  first  carrier  and  there  deliver  them  to  the 
connecting  carrier,  the  stipulations  limiting  the  liability  can 
only  benefit  the  first  carrier — the  party  with  whom  the  contract 
was  made.  And  where  the  contract  for  shipment  was  to  trans- 
port and  deliver  goods  at  a  point  beyond  the  terminus  of  its  own 
line,  and  contained  the  following  clause :  ' '  Unavoidable  accidents 
of  the  railroad  and  of  fire  in  the  depot  excepted,"  it  was  held 
''that,  in  the  absence  of  proof  of  any  other  or  new  contract,  this 

53  Railroad   Co.   v.   Fraloff,   100  by  any  device  or  artifice  evades 

U.    S.    24.      "As   a   condition   pre-  inquiry   as  to   such  value  where- 

cedent  to  its  transportation,  they  by    a    responsibility    is    imposed 

may     require     information     from  upon  them  beyond  what  they  are 

him  as  to  its  value,  and  demand  bound  to  assume  in  consideration 

extra    compensation    for    any    ex-  of  the  ordinary  fare  charged  for 

cess   beyond   that  which  he  may  the  transportation  of  the  person." 

reasonably    demand    to   he    trans-  Steers  v.  Liverpool,  etc.  S.  S.  Co., 

ported     as     baggage     under     the  57  N.  Y.  1;   Hill  v.  Railroad  Co., 

contract     to     carry     the     person.  144  Mass.  284:  Rosenfield  v.  Rail- 

They    may    be    discharged    from  road  Co.,  103  Ind.  121. 
liability  for  its  full  value  if  he 


§'   525.]  CONTRACTS — TRANSPORTATION    OF    GOODS.  543 

exception  would  be  held  to  extend  to  every  other  connecting- 
carrier  who  shared  the  freight  specified  in  the  bill  of  lading,  and 
that  in  an  action  against  such  connecting  carrier,  the  goods  hav- 
ing been  lost  while  in  its  possession,  he  could  claim  the  benefit 
of  it. ' '  ^*  But  where  the  contract  was  with  the  common  carrier 
for  an  agreed  compensation  to  carry  the  goods  to  the  terminus 
of  his  road,  and  then  deliver  them  to  another  carrier,  it  was  held 
that  ''no  authority  results  from  the  relation  or  from  the  contract 
empowering  him  to  enter  into  a  special  contract  on  behalf  of  the 
owner  with  the  next  carrier  limiting  or  restricting  the  liability 
of  the  latter.  The  whole  duty  of  the  first  carrier  terminates  with 
the  delivery  of  the  goods  to  the  second,  and  the  common-law 
liability  of  the  latter  attaches  at  once  by  necessary  implication 
upon  the  receipt  thereof. ' '  ^^  The  court  in  the  opinion  using 
this  lan^age:  "Carriers  who  are  not  named  in  a  contract  for 
the  carriage  of  goods  and  who  are  not  formal  parties  to  it  may, 
under  certain  circumstances,  have  the  benefit  of  it.  Such  is  the 
case  when  a  contract  is  made  by  one  of  several  carriers  upon 
connecting  lines  or  routes  for  the  carriage  of  property  over  the 
several  routes  for  an  agreed  price  by  authority,  express  or  im- 
plied, of  all  the  carriers.  So,  too,  in  the  absence  of  any  authority 
in  advance,  or  any  usage  from  which  an  authority  might  be  in- 
ferred, a  contract  by  one  carrier  for  the  transportation  of  goods 
over  his  own  and  connecting  lines,  adopted  and  acted  upon  by 
the  other  carriers,  would  inure  to  the  benefit  of  all  thus  ratifying 
it,  and  performing  service  under  it.  But  in  such  and  the  like 
cases  the  contract  has  respect  to  and"  provides  for  the  services  of 
the  carriers  upon  the  connecting  routes." 

§  525.  Liiniti*ng  liability  in  England — Especially  by  notice. — 
From  a  very  early  period  the  English  courts  recognized  that 
carriers  might  limit  their  liability  by  contact  or  by  notice,  and 
by  notice  which  was  very  general  in  its  character.  Indeed,  it 
may  be  said  the  English  courts,  from  the  decision  of  the  case  of 
Oibhons  v.  Paynton  °*  in  1769  down  to  the  time  when  the 
carrier's  statute  passed  the  parliament  in  1830,  allowed  the 
carrier  great  latitude  by  way  of  shielding  himself  from  liability 

5*Maghee    v.    Camden,    etc.    R.  oases  cited;   Redfield  on  Carriers, 

Co.,  45  N.  Y.  514.  sec.   181,  and  cases  cited  in  note 

53  Babcock  v.  L.  S.  etc.  R.  Co.,  49  9;   Hutch,  on  Carriers,  sec.  271. 
N.    Y.    491,    citing   Root   v.    Great  56  4  Burr.  2298. 

Western  R.  Co.,  45  N.  Y.  524,  and 


544  CARRIERS.  [§   525. 

by  general  notice.  So  extremely  liberal  did  the  courts  become  in 
extending  their  privileges  to  carriers  that  Lord  Ellenborough,  in 
Downs  V.  Fromont^''  in  1814,  said:  "I  am  very  sorry  for  the 
convenience  of  trade  that  carriers  have  been  allowed  to  limit 
their  common-law  responsibility,  and  some  legislative  measure 
upon  the  subject  will  soon  become  necessary,  but  I  feel  myself 
bound  by  the  decisions,  that  such  notices,  in  cases  where  they 
apply,  constitute  a  special  contract  between  the  parties."  In 
1830  the  statute  commonly  known  as  the  Carrier's  Act  passed 
parliament.  The  first  section  of  that  act  provides  ' '  that  no  mail 
contractor,  stage-coach  proprietor,  or  other  common  carrier  by 
land,  for  hire,  shall  be  liable  for  the  loss  of,  or  injury  to,  any 
article  or  articles  or  property  of  the  descriptions  following :  (that 
is  to  say)  gold  or  silver  coin  of  this  realm  or  of  any  foreign  state, 
or  any  gold  or  silver  in  a  manufactured  or  unmanufactured  state, 
or  any  precious  stones,  jewelry,  watches,  clocks  or  time-pieces  of 
any  description,  trinkets,  bills,  notes  of  the  governor  and  com- 
pany of  the  banks  of  England,  Scotland  and  Ireland,  respective- 
ly, or  of  any  other  bank  in  Great  Britain  or  Ireland,  orders, 
notes  or  securities  for  payment  of  money,  English  or  foreign 
stamps,  maps,  writings,  title-deeds,  paintings,  engravings,  pic- 
tures, gold  or  silver  plate  or  plated  articles,  glass,  china,  silks  in 
a  manufactured  or  unmanufactured  state,  and  whether  wrought 
up  or  not  wrought  up  with  other  materials,  furs  or  lace,  or  any- 
of  them,  contained  in  any  parcel  or  package  which  shall  have 
been  delivered,  either  to  be  carried  for  hire  or  to  accompany  the 
person  of  any  passenger  in  any  mail  or  stage-coach  or  other  pub- 
lic conveyance,  when  the  value  of  such  article  or  articles  or  prop- 
erty aforesaid,  contained  in  such  parcel  or  package,  shall  exceed 
the  sum  of  ten  pounds,  unless  at  the  time  of  the  delivery  thereof 
at  the  office,  warehouse  or  receiving-house  of  such  mail  contrac- 
tor, stage-coach  proprietor  or  other  common  carrier,  or  to  his, 
her  or  their  bookkeeper,  coachman,  or  other  servant,  for  the  pur- 
pose of  being  carried  or  of  accompanying  the  person  of  any 
passenger  as  aforesaid,  the  value  and  nature  of  such  article  or 
articles  or  property  shall  have  been  declared  by  the  person  or 

57  4   Camp.   40.     So  excellent  a  393,  that  I  earnestly  commend  its 

history   of  the   English   decisions  persual    to    the    student    of    this 

and    acts    is    given    in    Fish    v.  subject. 
Chapmen,  2  Ga.  349,  46  Am.  Dec. 


§    526.]  CONTRACTS — TRANSPORTATION    OF    GOODS.  545 

persons  sending  or  delivering  the  same,  and  such  increased  charge 
as  hereinafter  mentioned,  or  an  engagement  to  pay  the  same,  be 
accepted  by  the  person  receiving  such  parcel  or  package. ' '  The 
second  section  provides  that  ''when  any  parcel  or  package  con- 
taining any  of  the  articles  above  specified  shall  be  so  delivered, 
and  its  value  and  contents  declared  as  aforesaid,  and  such  value 
shall  exceed  the  sum  of  ten  pounds,  it  shall  be  lawful  for  such 
contractors,  stage-coach  proprietors  and  other  common  carriers 
to  demand  and  receive  an  increased  rate  of  charge,  to  be  notified 
by  some  notice  affixed  in  legible  characters  in  some  public  and 
conspicuous  part  of  the  office,  warehouse  or  other  receiving- 
house  where  such  parcels  or  packages  are  received  by  them  for 
the  purpose  of  conveyance,  stating  the  increased  rates  of  charge 
required  to  be  paid  over  and  above  the  ordinary  rate  of  car- 
riage as  a  compensation  for  the  greater  risk  and  care  to  be  taken 
for  the  safe  conveyance  of  such  valuable  articles;  and  all  per- 
sons sending  or  delivering  parcels  or  packages  containing  such 
valuable  articles  as  aforesaid  at  such  office  shall  be  bound  by 
such  notice  without  further  proof  of  the  same  having  come  to 
their  knowledge."  ^^ 

Following  this  statute  was  the  act  of  parliament  passed  in 
1854,  known  as  the  Railway  and  Canal  Traffic  Act,  which  modi- 
fied the  act  of  1830  as  applied  to  railways  and  canal  traffic.  The 
seventh  section  of  the  act,  among  other  things,  provides  "that 
railway  companies  are  liable  for  the  loss  or  injury  done  to  goods 
by  the  neglect  or  default  of  the  company,  or  its  servants,  not- 
withstanding any  notice  limiting  their  liability,  provided  that 
they  may  make,  by  special  contract  assented  to  and  signed  by  the 
consignor,  any  conditions  which  are  adjudged  by  the  court  to  be 
just  and  reasonable.  The  signature  of  the  consignor  or  his  agent 
is  essential  to  the  validity  of  the  contract. ' '  °® 

§  526.  The  result  of  this  act. — Upon  these  acts  rest  the 

adjudicated  cases  in  England.    It  will  be  noticed  that  the  sub- 

58  The  above  was  stated  by  Story  Cole   v.    Goodwin,   19   Wend.    251, 

on  Bailm.,  sec.  554a.     See  English  where  Cowen,  C.  J.,  gives  a  full 

notes    5    Eng.    Rul.      Cases,    337  discussion  of  the  several  acts  and 

where   the    statute    is    given    and  decisions. 

very   many    cases    cited    and    dis-  59  Aldrich  v.  Great  Western  R. 

cussed.      See    also    notes    to    sec-  Co.    (1864),   15   Com.   B.    (N.    S.) 

tion    554    et   seq.,    Story   on   Bail-  582;  5  Eng.  Rul.  Cases,  340. 
ments,   for  a  general   discussion; 

35 


546  CARRIERS.  [§   526. 

stance  of  the  provisions  toiiehino:  this  subject  is  that  what  is 
"just  and  reasonable"  is  to  be  submitted  to  the  courts.  Very 
many  decisions  of  the  courts  might  be  cited,  but  suffice  it  to  say 
that  an  examination  of  the  ajudications  will  discover  that  the 
courts  have  virtually  held  that  it  is  "just  and  reasonable"  for 
the  carrier  to  limit  his  liability  to  almost  any  extent  except  as  to 
his  own  negligence  or  that  of  his  servants.^*^  While  the  courts  do 
not  say  this,  or  state  it  in  their  opinions,  it  is  virtually  the  sub- 
stance of  their  decisions. 

60  See  cases  cited  in  5  Eng.  Rul.  Cas.  340,  etc.;  Hutch,  on  Carriers, 
§  234,  and  notes. 


CHAPTER  IX. 

LIABILITY    OF    THE    COMMON    CARRIER     (CONTINUED)— CON- 
NECTING   CARRIERS. 


§  527.  Liable  only  over  his  own 
line  except  when  con- 
tract is  for  further  li- 
ability. 

528.  If  there  is  no  con- 
tract as  to  liability  be- 
yond its  own  line. 

529.  The   English    rule. 

530.  Decisions  of  states  not  har- 

monious. 

531.  Some   conditions   and   rela- 

lations  from  which  con- 
tract for  through  ship- 
ment may   be   implied. 


§  532.  Who    are    connecting    car- 
riers. 

533.  The  relations  between  the 

shipper,  the  initial  car- 
rier and  the  connecting 
carrier. 

534.  The    duty   of   the   connect- 

ing  carrier. 

535.  Authority     to     make     con- 

tract binding  connecting 
carriers. 

536.  Actions    for    loss    or    dam- 

age. 


§  527.  Liable  only  over  his  own  line  except  when  contract 
is  for  further  liability. — Primarily  the  carrier's  liability  only 
extends  to  shipments  over  his  own  line,  and,  if  he  is  to  be  held 
liable  for  loss  or  injury  beyond  hisi  line,  his  liability  can  only  be 
made  out  by  proof  of  a  contract,  either  express  or  implied, 
whereby  he  assumes  such  liability.  Such  a  contract  may  be  an 
express  written  contract,  assuming  liability  over  connecting  lines 
and  to  the  termination  of  the  shipment,  and,  in  such  case,  like 
all  written  contracts,  it  must  be  construed  by  the  court;  or  it 
may,  as  said,  be  an  implied  contract — implied  from  all  the  facts 
and  circumstances.  Where  the  goods  are  received  by  the  carrier 
marked  through  to  their  destination,  and  a  through  freight  rate 
made  and  collected,  the  initial  carrier  having  through  shipping 
arrangements  with  the  connecting  carrier  over  whose  line  the 
goods  are  to  be  transported,  a  contract  for  through  shipment  by 
the  initial  carrier  would  be  implied.  In  all  cases  where  the  con- 
tract is  implied  from  facts  shown  upon  the  trial,  it  is  a  question 
for  the  jury  to  determine  whether  a  contract  was  made  which 
bound  the  initial  carrier  throughout  the  journey  to  the  destina- 
tion of  the  goods. 


548  CARRIERS.  [§   528. 

§  528.  If  there  is  no  contract  as  to  liability  beyond  its  own 
line. — In  the  absence  of  a  contract,  express  or  implied,  fixing 
the  liability  beyond  its  own  line,  the  carrier  has  a  duty  cast  upon 
him  by  the  law  to  safely  deliver  the  goods  into  the  possession 
of  the  first  connecting  carrier.  That  duty  will  not  be  fulfilled 
by  simply  carrying  the  goods  to  the  end  of  its  own  line  and 
placing  them  in  a  warehouse.  The  fact  that  they  are  marked 
through  is  enough  to  make  it  incumbent  upon  initial  carrier  to 
properly  deliver  them  to  the  connecting  carrier.  The  mere  tak- 
ing of  the  goods  for  shipment  by  the  initial  carrier,  marked  to 
a  destination  beyond  its  own  line,  is  not  a  sufficient  fact  from 
which  an  implied  contract  to  ship  to  destination  and  assume  lia- 
bility will  be  inferred.  It  is  simply  a  fact,  with  others,  to  be  sub- 
mitted to  the  jury  upon  such  a  contention,  but  of  itself  alone  it 
is  not  enough.  The  supreme  court  of  the  United  States  have 
very  clearly  stated  the  prevailing  rule  in  this  country  in  such 
like  cases.  The  court  say :  "  A  railroad  company  is  a  carrier  of 
goods  for  the  public,  and,  as  such,  is  bound  to  carry  safely  what- 
ever goods  are  intrusted  to  it  for  transportation  within  the 
course  of  its  business  to  the  end  of  its  route,  and  there  deposit 
them  in  a  suitable  place  for  their  owners  or  consignees.  If  the 
road  of  the  company  connects  with  other  roads,  and  goods  are 
received  for  transportation  beyond  the  termination  of  its  own 
line,  there  is  superadded  to  its  duty  as  a  common  carrier  that  of 
a  forwarder  by  the  connecting  line :  that  is,  to  deliver  safely  the 
goods  to  such  line — the  next  carrier  on  the  route  beyond.  This 
forwarding  duty  arises  from  the  obligation  implied  in  taking  the 
goods  for  the  point  beyond  its  own  line.  The  common  law  im- 
poses no  greater  duty  than  this.  If  more  is  expected  from  the 
company  receiving  the  shipment,  there  must  be  a  special  agree- 
ment for  it.  This  is  the  doctrine  of  this  court,  although  a  dif- 
ferent rule  of  liability  is  adopted  in  England  and  in  some  of  the 
states.    As  was  said  in  Railroad  Co.  v.  Manufacturing  Co.,^  'It 

116  Wall.   (U.  S.)  318,  324;  My-  etc.  R.  Co.,  112  Mo.  App.  459,  87 

Merchants'  Dispatch,  etc.,  Co.,  106  S.    W.    52.     The   mere    receipt   of 

106;    James   S.   Davis,   etc.   Co.  v.  goods    marked    for    delivery    be- 

Merchants'  Dispatch,  etc.  Co.,  106  yond  the  terminus  of  the  initial 

Mo.    App.    487,    81    S.    W.    226;  carrier's  route  does  not  import  a 

Thyll  V.  New  York,  etc.  R.  Co.,  87  contract   to   carry   to   that   place, 

N.  Y.  S.  345;  Sterling  v.  St.  Louis,  but   in   the   absence   of   a   special 

etc.  R.  Co.   (Tex.  Civ.  App.  1905)  contract  the  initial  carrier  is  only 

86  S.  W.  655;  Hubbard  v.  Mobile,  responsible  to   the   extent   of  his 


§    528.]  CONNECTING   CARRIERS.  549 

is  unfortunate  for  the  interests  of  commerce  that  there  is  any 
diversity  of  opinion  on  such  a  subject,  especially  in  this  coun- 
try ;  but  the  rule  that  holds  the  carrier  only  liable  to  the  extent 
of  his  own  route,  and  for  the  safe  storage  and  delivery  to  the 
next  carrier,  is  in  itself  so  just  and  reasonable  that  we  do  not 
hesitate  to  give  it  our  sanction. '  This  doctrine  was  approved  in 
the  subsequent  case  of  Railroad  Co.  v.  Pratt,^  although  the  con- 
tract there  was  to  carry  through  the  whole  route.  Such  a  con- 
tract may,  of  course,  be  made  with  any  one  of  different  connect- 
ing lines.  There  is  no  objection  in  law  to  a  contract  of  the  kind, 
with  its  attendant  liabilities.  See  also  Insurance  Co.  v.  Railroad 
Co.^  The  general  doctrine,  then,  as  to  transportation  by  con- 
necting lines,  approved  by  this  court,  and  also  by  a  majority  of 
the  state  courts,  amounts  to  this :  that  each  road,  confining  itself 
to  its  common-law  liability,  is  only  bound,  in  the  absence  of  a 
special  contract,  to  safely  carry  over  its  own  route  and  safely 
to  deliver  to  the  next  connecting  carrier,  but  that  any  one  of  the 
companies  may  agree  that  over  the  whole  route  its  liability  shall 
extend.  In  the  absence  of  a  special  agreement  to  that  effect, 
such  liability  will  not  attach,  and  the  agreement  will  not  be  in- 
ferred from  doubtful  expressions  or  loose  language,  but  only 
from  clear  and  satisfactory'  evidence. ' '  * 

own  route,  and  safe  delivery  to  Graham  &  Ward  v.  Macon,  etc.  R. 
the  connecting  carrier.  Bisha-  Co.,  120  Ga.  757,  49  S.  E.  75. 
waite  V.  Penn.  R.  Co.,  92  N.  Y.  S.  2  22  Wall.  123. 
783;  Chicago,  etc.  R.  Co.  v.  Wood-  3  104  U.  S.  146. 
ward,  164  Ind.  360,  72  N.  E.  558;  *  Myrick  v.  Railroad  Co.,  107 
McLendon  v.  Wabash,  etc.  R.  Co.,  U.  S.  102;  also  111.  Cent.  R.  Co.  v. 
119  Mo.  App.  128,  95  S.  W.  943.  Carter,  165  111.  570,  36  L.  R.  A. 
The  mere  statement  of  the  clerk  527.  In  the  case  of  Nutting  v. 
of  the  initial  carrier  that  the  Connecticut  River  R.  Co.,  1  Gray, 
goods  will  be  sent  through  to  des-  502,  the  receipt  was,  "Received  of 
tination  held  not  sufficient  evi-  E.  Nutting  for  transporting  to 
dence  of  contract  for  though  ship-  New  York  nine  boxes  of  planes 
ment.  Weise  v.  St.  Louis,  etc.  R.  marked,  etc."  (naming  the 
Co.,  97  N.  Y.  S.  993.  But  if  initial  goods.)  The  boxes  were  delivered 
carrier  receives  goods  marked  by  the  initial  company  at  the 
through  and  collects  freight  terminus  of  their  road  to  the  N. 
through  he  is  liable  through  and  if  H.,  etc.  R.  Co.,  and  afterwards  to 
by  contract  agrees  to  deliver  to  a  the  N.  Y.,  etc.  R.  Co.,  which  ex- 
certain  connecting  carrier  and  de-  tends  to  the  city  of  New  York, 
livers  to  another  he  is  liable.  A  receipt  was  taken  by  the  de- 
Eckles  v.  Missouri  Riv.  R.  Co.,  fendants  for  the  freight  from  the 
112   Mo.   App.   240,   87   S.   W.   99;  first  connecting  carrier;  the  boxes 


550 


CARRIERS. 


§    529. 


§  529.  The  English  rule. — The  English  rule  differs  from  the 
rule  just  stated  and  discussed  in  this:  that  from  the  very  act  of 
receiving,  by  the  initial  carrier,  goods  directed  beyond  its  own 
route,  a  contract  for  through  shipment  is  implied,  and  to  ex- 
empt itself  from  liability  beyond  its  own  line  the  carrier  must 
obtain  from  the  shipper  an  express  contract  relieving  him  from 
such  responsibility.  This  rule  is  said  to  be  founded  upon  the 
early  case  of  Miischamp  v.  Lancaster,  etc.  R.  Co.,^  but  it  would 
seem  that  this  case,  from  the  opinion  of  Lord  Abinger,  does  not 
go  to  the  extent  of  upholding  the  rule  as  stated.  At  most  it  but 
decided  that  the  accepting  of  the  freight  directed  to  a  point  be- 
yond the  carrier's  line  is  prima  facie  evidence  of  a  contract, 
and  that  expression  of  the  court  was  hardly  meant  to  be  as 
broad  as  the  construction  usually  put  upon  it.  The  court  dis- 
tinctly say  that  the  whole  question  is  one  for  the  jury;  that  the 
fact  of  the  goods  being  marked  to  be  sent  beyond  the  carrier's 
line,  and  that  the  charges  for  the  entire  distance  were  stated,  are 
to  be  considered ;  and  the  court  in  summing  up  the  matter  say : 
"The  whole  matter  is  therefore  a  question  for  the  jury  to  de- 


were  all  delivered  in  New  York 
except  two  which  were  lost  be- 
tween Springfield  and  New  Ha- 
ven. The  court  say:  "What, 
then,  is  the  obligation  imposed 
on  them  by  law,  in  the  absence 
of  any  special  contract  by  them, 
when  they  receive  goods  at  their 
depot  in  Northampton  which  are 
marked  with  the  names  of  con- 
signees in  the  city  of  New  York? 
In  our  judgment,  that  obligation 
is  nothing  more  than  to  trans- 
port the  goods  safely  to  the  end  of 
their  road,  and  there  deliver 
them  to  the  proper  carriers,  to  be 
forwarded  towards  their  ultimate 
destination.  This  the  defendants 
did,  in  the  present  case,  and  in  so 
doing  performed  their  full  legal 
duty.  If  they  can  be  held  liable 
for  a  loss  that  happens  on  any  rail- 
road besides  their  own,  we  know 
not  what  is  the  limit  of  their 
liability.  If  they  are  liable  in  this 
case,    we    do    not    see    why    they 


would  not  also  be  liable,  if  the 
boxes  had  been  marked  for  con- 
signees in  Chicago,  and  had  been 
lost  between  that  place  and  De- 
troit, on  a  road  with  which  they 
had  no  more  connection  than 
they  have  with  any  railway  in 
Europe.  But  the  plaintiff  seeks 
to  charge  the  defendants  on  the 
receipt  given  by  Clarke,  their 
agent,  as  on  a  special  contract 
that  the  boxes  should  be  safely 
carried  the  whole  distance  be- 
tween Northampton  and  New 
York.  We  cannot  so  construe 
the  receipt.  It  merely  states  the 
fact  that  the  boxes  had  been  re- 
ceived 'for  transportation  to  New 
York.' "  The  court  further  in  the 
opinion  discussed  the  case  of 
Muschamp  v.  Lancaster,  etc.  R. 
Co.,  8  M.  &  W.  421,  and  said:  "We 
cannot  concur  in  that  view  of 
the  law."  (Citing  cases.)  Gray 
V.  Jackson,  51  N.  H.  9. 
5  8  M.  &  W.  421. 


§'   530.]  CONNECTING   CARRIERS.  551 

termine  what  the  contract  was  on  the  evidence  before  them. 
.  .  .  In  cases  like  the  present,  particular  circumstances 
might  no  doubt  be  adduced  to  rebut  the  inference  which  prima 
facie,  must  be  made  of  the  defendants  having  undertaken  to 
carry  the  goods  the  whole  way.  The  taking  charge  of  the  par- 
cel is  not  put  as  conclusive  evidence  of  the  contract  sued  on  by 
the  plaintiff ;  it  is  only  prima  facie  evidence  of  it ;  and  it  is  useful 
and  reasonable  for  the  benefit  of  the  public  that  it  should  be  so 
considered.  It  is  better  that  those  who  undertake  the  carriage 
of  parcels  for  their  mutual  benefit  should  arrange  matters  of  this 
kind  inter  se,  and  should  be  taken  each  to  have  made  the  others 
their  agents  to  carry  forward." 

The  court  does  not  attempt  to  lay  down  any  decisive  principle 
that  is  to  govern  in  such  like  cases ;  at  most  it  but  decides  that 
it  is  a  question  of  fact  for  the  jury ;  that  if  not  objected  to,  if  no 
proofs  to  the  contrary  are  adduced,  the  accepting  of  the  goods 
under  such  circumstances  would  be  prima  facie  proof  of  the 
intention  of  the  carrier  to  transport  them  to  their  destination. 
But  supposing  the  carrier  had  shown  upon  the  trial  of  other 
cases  other  circumstances,  or  had  shown  a  conversation  between 
the  agent  of  the  carrier  and  the  shipper  which  would  contradict 
the  claimed  presumption,  and  the  jury  had  believed  that  there 
was  no  intention  to  assume  responsibility;  under  this  opinion  if 
the  case  had  been  so  stated,  a  verdict  exactly  opposite  to  the  one 
under  consideration  could  have  been  sustained.  So  it  may  be 
concluded  that  the  difference  between  the  American  and  Eng- 
lish rule  is  not  so  very  great,  for  in  this  country  it  is  a  ques- 
tion for  the  jury  if  an  implied  contract  is  claimed.  The  differ- 
ence, therefore,  can  be  said  to  be  that  under  the  English  rule  the 
receiving  of  the  goods  directed  to  a  point  beyond  the  carrier's 
line  is  prima  facie  evidence  that  the  initial  carrier  had  assumed 
the  responsibility  of  the  entire  transportation  of  the  goods,  but 
this  presumption  may  be  rebutted;  while  in  the  United  States 
the  receipt  of  goods  under  such  circumstances  does  not  fix  any 
such  liability  upon  the  carrier,  and  does  not  even  make  out  a 
prima  facie  case. 

§  530.  Decisions  of  states  not  harmonious. — The  decisions  of 
the  states  are  not  entirely  harmonious.  Some  of  them  have 
adopted  the  English  rule,  so  called,  holding  that  where  property 
is  delivered  to  the  carrier  for  shipment  directed  to  a  destination 
beyond  its  line,  and  the  carrier  accepts  the  goods  for  sJiipment, 


552 


CARRIERS. 


[§  530. 


it  is  prima  facie  evidence  of  an  implied  contract  that  the  initial 
carrier  will  assume  liability  beyond  its  own  line,  and  in  order  to 
be  excused  from  such  liability  the  carrier  must  obtain  a  contract 
from  the  shipper  to  that  effect;®  while  others  of  the  states,  and  a 


c  Wabash,  etc.  R.  Co.  v.  Jag- 
german,  115  111.  407.  The  court 
say:  "It  is  a  well  settled  doctrine 
in  this  state  that  where  a  com- 
mon carrier  receives  goods  to 
carry,  marked  to  a  particular 
place  beyond  his  line,  he  is  bound 
under  an  implied  agreement  from 
the  marks  and  directions  to  carry 
to  and  deliver  to  that  place,  al- 
though it  be  a  place  beyond  his 
own  line  of  carriage."  111.  Cent. 
R.  Co.  V.  Copeland,  24  111.  332; 
111.  Cent.  R.  Co.  v.  Frankenberg, 
54  111.  88.  If  goods  are  delivered 
to  a  common  carrier  marked  for 
a  place  beyond  the  terminus  of 
its  line  and  it  receives  the  goods 
to  carry,  the  carrier  is  bound  by 
the  common-law  rule  to  carry 
them,  and  if  they  are  lost  to  ac- 
count to  the  owner  for  their 
value.  Chicago  &  N.  W.  R.  Co.  v. 
Monfort,  60  111.  175;  Erie  Ry.  Co. 
V.  Wilcox,  84  111.  239;  Wabash  R. 
Co.  V.  Harris,  55  111.  App.  159; 
Ar;gle  &  Co.  v.  M.  &  M.  R.  Co.,  9 
Iowa,  487.  In  Mulligan  v.  111. 
Cent.  R.  Co.,  36  Iowa,  181,  the 
court  say:  "Upon  this  question 
there  is  a  striking  lack  of  uni- 
formity in  the  decisions.  There 
are  three  views  which  have  been 
maintained  by  their  respective 
advocates  with  perhaps  equal 
cogency  of  reasoning:  First.  That 
where  carriers  receive  and  re- 
ceipt for  goods  consigned  to  a 
point  beyond  the  terminus  of 
their  road,  without  any  special 
contract  respecting  the  same,  the 
agreement  is  one  for  transporta- 
tion   the    whole    distance,    upon 


which  the  first  carrier  may  be 
sued  for  a  loss  occurring  after  the 
goods  have  passed  beyond  the  ter- 
minus of  its  road.  The  first  case 
which  has  generally  been  cited 
as  announcing  this  doctrine  is 
Muschamp  v.  Lancaster  R.  Co.,  8 
M.  &  W.  421,  decided  in  the  court 
of  exchequer  in  1841,  followed 
and  reinforced  in  Collins  v.  Bris- 
tol &  Exeter  R.  Co.,  11  Exch.  790, 
and  extended  even  to  goods 
booked  beyond  the  limits  of  Eng- 
land. .  .  .  Second.  That  where 
a  carrier  receives  goods  marked 
for  a  particular  destination  be- 
yond the  terminus  of  its  line,  and 
does  not  expressly  undertake  to 
deliver  them  at  the  point  desig- 
nated, the  implied  contract  is 
only  to  transport  over  its  own 
line,  and  forward,  accrding  to  the 
usual  course  of  business,  from 
its  terminus.  See  McMillan  et  al. 
V.  M.  S.  &  N.  I.  R.  Co.,  16  Mich. 
120;  Van  Santvoord  v.  St.  John, 
G  Hill,  157;  Farmers'  &  Mechan- 
ics' Bank  v.  Champlin  Transp. 
Co.,  23  Vt.  186;  Britnall  v.  Sara- 
toga &  Whitehall  R.  Co.,  32  id. 
665;  Hood  v.  N.  Y.  &  N.  H.  R. 
Co.,  22  Conn.  1,  502;  Elmon  v. 
Naugatuck  R.  Co.,  23  id.  457  ;i 
Naugatuck  R.  Co.  v.  Waterbury 
Button  Co.,  24  id.  468;  Nutting 
V.  Connecticut  River  R.  Co.,  1 
Gray,  502;  Burroughs  v.  Norwich 
&  W.  R.  Co.,  100  Mass.  26;  Darl- 
ing V.  Railroad  Co.,  11  Allen,  295; 
Root  V.  Great  Western  R.  Co.,  45 
N.  Y.  524;  Jemison  v.  Camden  & 
Amboy  R.  Co.,  4  Am.  Law  Reg. 
234;    United    States    Exp.    Co.    v. 


§  530. 


CONNECTING  CARRIERS. 


553 


great  majority  of  them,  hold  to  the  rule  that  this  does  not  create 
an  implied  contract,  and  that  the  initial  carrier  does  not  become 
liable  beyond  its  own  line  except  by  a  contract,  either  or  implied, 
assuming  such  liability.'^ 

Where  the  contract  is  not  in  writing,  the  question  as  to  whether 
the  initial  carrier  is  to  carry  the  freight  beyond  its  own  line,  as 
siuning  the  liability  incident  to  the  carriage,  seems  by  the  weight 
of  authority  to  be  a  subject  for  proof;  and  where  in  an  action 
against  a  carrier  to  recover  for  the  loss  of  plaintiff's  horses  by 
fire  while  on  the  line  of  a  connecting  carrier,  it  was  claimed  that 
defendant  only  contracted  for  carriage  to  the  end  of  its  line,  but 


Rush  et  al.,  24  Ind.  403;  Penn- 
sylvania Cent.  R.  Co.  v.  Schwarz- 
enberger,  45  Pa.  St.  208;  Rome  R. 
Co.  V.  Sullivan,  Cabot  &  Co.,  25 
Ga.  228.  Third.  That  the  mere 
acceptance  of  goods  by  a  common 
carrier  marked  to  a  designation 
beyond  the  terminus  of  its  line 
as  a  matter  of  law  imports  no 
absolute  undertaking  upon  the 
part  of  the  carrier  beyond  the 
end  of  its  road,  but  is  a  matter 
of  evidence  to  be  submitted  to  the 
jury,  from  which,  in  connection 
with  other  evidence  produced, 
they  are  to  determine,  as  a  ques- 
tion of  fact,  the  real  engagement 
entered  into.  This  position  was 
very  ably  maintained  in  a  recent 
and  elaborate  opinion  of  the  su- 
preme court  of  New  Hampsire, 
reviewing  almost  the  whole  cur- 
rent of  decisions  from  Muschamp 
V.  Lancaster  Ry.  Co.,  8  M.  &  W. 
421,  down  to  the  present  period. 
See  Gray  v.  Jackson,  51  N.  H.  9. 
The  question  is  not  an  open  one 
in  this  state.  In  Angle  v.  M.  M. 
Ry.  Co.,  9  Iowa,  487,  the  rule  was 
settled  as  it  is  understood  to  ex- 
ist in  England,  and  it  was  held 
that  the  acceptance  by  a  carrier 
of  goods  marked  to  a  designation 
beyond  the  terminus  of  its  road 
creates  a  prima  facie  liability  to 


transport  to  and  deliver  at  that 
point,  which  may  be  modified  by 
proof  of  a  different  usage  known 
to  the  shipper  at  the  time  of 
making  the  consignment.  The 
court  did  not  err,  therefore,  in 
the  first  branch  of  the  foregoing 
instruction,  as  applied  to  the  evi- 
dence introduced,  there  b§ing  no 
proof  that  plaintiff  knew  of  a 
usage  of  the  defendant  not  to 
transport  freight  beyond  Cairo." 
7  Grover  &  Baker  Co.  v.  Rail- 
road Co.,  70  Mo.  672;  Knott  v. 
Railroad  Co.,  98  N.  C  73;  De- 
troit, etc.  R.  Co.  V.  McKensie,  43 
Mich.  609;  Rickerson  v.  Railroad 
Co.,  67  Mich.  110;  Myrick  v. 
Railroad  Co.,  107  U.  S.  102.  See 
cases.  Hutch,  on  Carriers,  sees. 
148,  149,  note.  "Wlien  a  carrier 
receives  goods  consigned  beyond 
its  line  within  a  special  contract, 
it  is  liable  only  to  carry  safely  to 
the  end  of  its  own  line  and  so 
deliver  to  the  next  carrier  on  the 
usual  route."  Harris  v.  Grand 
Trunk  R.  Co.,  15  R.  I.  371,  5  Atl. 
305;  Hunter  v.  S.  Pac.  R.  Co.,  76 
Tex.  195;  McConnell  v.  Norfolk 
&  W.  R.  Co.,  86  Va.  248;  Ortt  v. 
Minneapolis,  etc.  R.  Co.,  36  Minn. 
396;  Crawford  v.  Southern  R. 
Ass'n,  51  Miss.  222. 


554  CARRIERS.  [§    531, 

it  appeared  that  plaintiff  had  for  a  number  of  years  made  like 
contracts  with  defendant  on  which  stock  had  been  carried 
throvigh  to  the  destination,  and  that  the  contract  in  question  re- 
cited that  the  stock  was  received  for  shipment  to  the  point  of 
final  destination,  and  the  charges  fixed  by  defendant  were  for 
through  carriage,  it  was  held  sufficient  to  show  a  contract  of 
through  carriage.^ 

§  531.  Some  conditions  and  relations  from  which  contracts 
for  through  shipment  may  be  implied. — In  the  absence  of  an 
express  contract  for  through  shipment  on  the  part  of  the  initial 
carrier,  or  for  shipment  and  liability  over  its  own  line  only,  and 
for  delivery  to  the  succeeding  carrier,  the  contract  for  through 
shipment  and  liability  of  the  initial  carrier,  if  it  exists  at  all, 
must  be  implied ;  and,  as  we  have  seen,  must  in  all  cas,es  depend 
upon  facts  and  circumstances,  and  is  a  question  for  the  jury. 
While  it  is  difficult  to  conceive  of  such  a  contract  being  held  to 
exist  as  matter  of  law,  the  courts  have  freely  sustained  judg- 
ments based  upon  evidence  of  facts  which  imply  that  such  a  con- 
tract existed. 

Where  the  carrier  accepted  a  carload  of  freight  for  trans- 
portation and  gave  a  receipt  stating  it  was  consigned  to  a  des- 
ignated point  and  contained  the  figures  ''62.20,"  the  point 
named  being  beyond  the  defendant 's  line,  and  there  was  evidence 
that  "62.20"  was  the  freight  for  the  entire  distance,  prorated 
among  all  the  connecting  companies,  this  was  held  to  constitute 
a  through  contract  of  shipment.® 

Where  it  appeared  that  the  plaintiff  had  for  many  years  been 
in  the  habit  of  transporting  horses  over  defendant's  road  to  Bos- 
ton, which  was  beyond  the  defendant's  line;  that  the  station 
agent  at  the  point  of  shipment  had  been  such  agent  for  five  or 
six  years,  and  that  nearly  a  week  before  he  had  engaged  to  give 
plaintiff  two  good  cars  for  the  final  shipment  to  carry  the  horses 
to  Boston,  the  place  of  destination,  and  that  the  cars  furnished 
by  the  station  agent  of  the  defendant  had  always  gone  over  the 
connecting  line  and  delivered  the  freight  in  Boston;  that  the 
arrangements  made  were  recognized  by  the  company;  that  the 
office  of  the  agent  was  in  the  railroad  company's  freight  office; 
that  the  plaintiff  paid  the  freight  through,  sometimes  at  the 

8  Ogdensburg  R.  Co.  v.  Pratt,  Fruit  &  Vegetable  Exchange,  91 
89  U.  S.    (22  Wall.)    123.  Ga.  389,  17  S.  E.  904. 

9  Cent.  R.  &  Banking  Co.  v.  Ga. 


§    531.]  CONNECTING  CARRIERS.  555 

point  of  making  the  shi})ment  and  sometimes  at  the  destination; 
that  on  the  occasion  in  question  he  a^eed  with  the  defendant's 
station  agent  upon  the  price  through  to  destination ;  that  a  way- 
bill was  made  out  for  the  freight- and  cars  through  at  the  price 
agreed  upon;   that  the  price  agreed  upon  was  not   paid,  but 
might  have  been, — in  such  case  the  court  say:  "We  see  no  sound 
objection  to  the  admission  of  this  way-bill  as  evidence.     If  a 
written  contract,  it  was  not  only  evidence,  but  the  best  evidence 
of  what  the  contract  was.    It  was  exhibited  to  Pratt  (the  plain- 
tiff), before  the  cars  were  started,  as  a  part  of  the  transaction. 
If  not  a  contract,  it  was  an  act  done  and  a  declaration  made  by 
the  agent  in  the  very  act  of  transacting  the  business  and  as  a 
part  of  it,  which  brought  it  within  the  principle  of  the  res  gestce. 
This  evidence  shows  that  the  oral  engagement  was  to  carry  his 
horses  to  Boston,  not  to  carry  to  Rouse 's  Point  and  thence  to  for- 
ward to  Boston,  but  to  carry  as  well  and  as  fully  over  the  Ver- 
mont and  Massachusetts  roads  as  over  the  Odgensburg  road. 
Again,  a  specific  price  was  agreed  upon  for  transportation  over 
the  whole  route.    This  was  in  accordance  with  the  practice,  and 
whether  paid  at  Pottsdam  or  at  Boston  was  unimportant.     This 
practice  had  been  continued  for  years,  and  the  jury  had  the 
right  to  hold  the  contract  to  be  the  same  without  reference  to  pre- 
payment or  postpayment.     The  jury  were  justified  in  inferring 
that,  where  a  carrier  fixes  a  price  for  transportation  over  the 
whole  route,  that  he  makes  the  entire  contract  his  own.     One 
who  carries  simply  over  his  own  line  and  thence  forwards  by 
other  lines  would  ordinarily,  the  jurj^  may  say,  make  or  collect 
his  own  charges  and  leave  the  remaining  charges  to  be  collected 
by  those   performing  the  remaining  services.     Receipt  of  the 
entire  pay  affords  a  fair  presumption  of  an  entire  contract. ' '  '^^ 
And  so  it  may  be  said  that  the  evidences  of  joint  liability  are 
a  through  bill  of  lading;  through  charges  for  the  goods  carried; 
the  goods  shipped  so  as  to  be  carried  through  without  change  of 
cars ;  a  sharing  of  profit  and  loss  with  connecting  companies ;  the 

10  Railroad  Co.  v.  Pratt,  22  showing  that  the  company  held 
Wall.  123,  132.  In  Root  v.  Great  itself  out  as  a  carrier  for  the  en- 
Western  R.  Co.,  45  N.  Y.  524,  in  tire  distance,  or  received  freight 
speaking  of  the  contract  to  trans-  for  the  entire  distance,  or  other 
port  as  a  common  carrier  over  circumstances  indicating  an  un- 
other  lines,  the  court  say:  "Such  derstanding  that  it  was  to  carry 
an  undertaking  may  be  estab-  through." 
lished  by  express  contract,  or  by 


55G  CARRIEES  [§   533. 

holding  out  to  the  public  by  the  initial  carrier  that  it  will  be 
carried  through  to  destination  beyond  its  own  line.  These,  with 
other  circumstances  that  might  be  enumerated,  also  evidence  an 
intention  upon  the  part  of  the  initial  carrier  to  contract  for 
through  shipment." 

§  532.  Who  are  connecting  carriers. — The  term  ** connecting 
carrier"  is  used  in  contradistinction  to  the  term  "initial  car- 
rier" or  "first  carrier."  It  may  be  said,  then,  that  a  connect- 
ing carrier  is  a  carrier  between  the  initial  carrier's  line  and  the 
destination  of  the  goods,  and  so  there  may  be  one  or  more  con- 
necting carriers.^^ 

§  533.  The  relation  between  the  shipper,  the  initial  carrier 
and  the  connecting  carrier. — The  relation  between  the  shipper, 
the  initial  carrier  and  the  connecting  carrier  depends  entirely 
upon  the  contract  for  shipment.  Was  it  a  contract  for  through 
shipment  by  the  initial  carrier,  or  simply  for  shipment  over  its 
line  and  delivery  to  the  connecting  carrier?  If  the  contract 
with  the  initial  carrier  was  for  shipment  of  the  goods  over  con- 
necting lines  through  to  their  destination,  then,  in  that  case,  the 
connecting  carriers  are  but  the  agents  or  servants  of  the  initial 
carrier;  they  transport  the  goods  for  the  initial  carrier.  But 
even  if  this  be  so,  the  shipper,  as  we  shall  see,  may  hold  the  con- 
necting carriers  responsible  for  any  loss  or  injury  to  the  goods 
that  results  from  their  negligence  or  failure  to  deliver  the  prop- 
erty in  as  good  condition  as  when  received  by  them ;  or  the  ship- 
per may  hold  the  initial  carrier  for  damage  or  loss  wherever  it 
may  happen  during  transportation  under  the  contract  of  ship- 
ment. If  the  contract  with  the  initial  carrier  was  simply  to  ship 
the  goods  over  it8  own  line  and  deliver  them  to  the  connecting 
carrier,  then  the  initial  carrier  is  the  agent  of  the  shipper  in  the 
matter  of  delivering  the  freight  to  the  connecting  carrier,  and, 
if  there  is  more  than  one,  the  first  connecting  carrier  becomes 
the  agent  of  the  shipper  for  the  delivery  of  the  goods  to  the  sec- 
ond carrier,  and  so  on  to  the  end  of  the  shipment.  And  so  each 
shipment  or  delivery  to  a  connecting  carrier  is  in  fact  a  ship- 
ment or  delivery  by  the  shipper  himself  through  his  agent ;  and 
when  the  initial  carrier  in  such  case,  or  the  connecting  carrier, 

11  International,      etc.      Co.      v.  12  Hansen    v.     Jacobs,     12     Mo. 

Tisdale,  4  L.  R.  A.  545;  Shewalter      App.  125,  93  Mo.  331. 
V.   Mo.  Pac.  R.   Co.,   84  Mo.  App. 
589. 


§    53-i.J  CONNECTING   CAKKIERS.  557 

has  delivered  the  goods  in  as  good  condition  as  when  received  to 
the  succeeding  carrier,  or  the  consignee,  and  without  delay,  the 
carrier  thus  delivering  the  property  is  relieved  from  further  re- 
sponsibility.^* 

§  534.  The  duty  of  the  connecting  carrier. — The  duties  de- 
volving upon  the  connecting  carrier  are  the  same  as  those  incum- 
bent upon  the  initial  carrier.  He  is  bound  to  receive  the  goods 
of  all  who  apply  to  him  for  shipment,  if  in  the  line  of  his  busi- 
ness as  a  carrier,  and  it  makes  no  difference  whether  the  goods 
are  presented  by  an  initial  carrier,  who  has  become  liable  for  a 
contract  for  through  carriage  of  the  property,  or  by  the  initial 
or  connecting  carrier  as  the  agent  of  the  shipper ;  his  liability  is 
the  same  as  though  he  received  the  goods  from  the  shipper  direct ; 
and  if  he  would  relieve  himself  of  the  extraordinary  liability  he 
must  do  so  by  contract  at  the  time  of  receiving  the  property 
for  shipment.^*  It  is  the  duty  of  the  connecting  carrier  to  carry 
the  goods  safely  over  his  line  and  deliver  them  to  the  next  con- 
necting carrier,  or  to  the  consignee  if  they  have  arrived  at  their 
destination.  For  any  delay  upon  his  own  line,  or  in  delivery 
to  the  next  connecting  carrier,  he  is  liable.  Simply  unloading 
the  goods  upon  the  dock  or  platform,  or  putting  them  into  a  ware- 
house at  the  end  of  his  line,  is  not  a  delivery  to  a  connecting  car- 
rier that  will  relieve  him  from  responsibility.^^  Nor  can  the 
initial  or  connecting  carrier  relieve  himself  from  liability  by  de- 

13  In  M.  H.  0.  R.  Co.  v.  Kirk-  lien  therefor.  See  note,  5  Am. 
wood,  45  Mich.  51,  it  was  held  and  Eng.  Ann  Cases,  pp.  576,  7,  8. 
"a  carrier  of  goods  acts  as  the  i^  i  Mich.  Digest,  sec.  44.  "A 
agent  of  the  consignee  in  trans-  common  carrier's  liability  for 
fering  them  to  another  carrier,  freight  that  is  to  be  transferred 
and  not  as  the  latter's  agent."  to  another  carrier  continues  until 

14  2  In  Goodwin  v.  Southern  it  is  so  transferred,  or  at  least 
Ry.  Co.,  125  Ga.  630,  it  was  held  until  such  notification  has  been 
the  connecting  carrier  could  not  given  to  the  other  carrier  as 
be  held  for  damages  in  refusing  amounts  to  a  tender  of  delivery, 
to  deliver  goods  until  a  larger  And  if  the  first  carrier  merely 
amount  of  freight  was  paid  than  stores  the  freight  in  a  warehouse 
that  contracted  by  the  initial  of  its  own,  where  the  other  is 
carrier,  holding  that  initial  car-  in  the  habit  of  taking  it  at  its 
rier  had  no  authority  to  make  convenience,  and  the  freight 
such  contract.  And  it  is  generally  while  so  stored  is  destroyed,  the 
held  that  connecting  carriers  first  carrier  is  answerable  for  its 
may  under  such  circumstances  value."  Condon  v.  M.  H.,  etc.  R. 
charge   more  freight  and   have   a  Co.,  55  Mich.  218. 


558 


CARRIERS. 


[§'  534. 


livering  the  goods  to  or  forwarding  them  by  some  other  connect- 
ing carrier  than  the  one  designated  and  stipulated  for  in  the  con- 
tract of  shipment.^®  There  must  be  an  actual  delivery  of  the 
goods,  or  an  offer  to  deliver  to  the  succeeding  carrier,  and  if  the 
succeeding  carrier  refuses  to  accept  them  and  transport  them 
over  his  line  he  must  at  once  report  that  fact  to  the  owner,  or 
person,  or  company  from  whom  he  received  the  goods,  and  if  de- 
lay is  occasioned,  or  loss  or  damage  is  the  result  of  the  failure  to 
so  report  while  the  goods  are  thus  held,  because  of  the  refusal  to 
receive  them  as  aforesaid  by  the  succeeding  carrier,  the  carrier 
will  be  liable  as  a  warehouseman.^^  Nor  will  delivery  of  the 
goods  to  the  connecting  carrier  be  alone  sufficient  to  relieve  either 
the  initial  carrier  or  succeeding  carrier  who  delivers  them  from 
liability,  if  loss  or  injury  occurs  by  reason  of  a  deviation  from 


16  Strong  V.  Certain  Quantity 
of  Wheat,  Fed.  Cases  No.  13,541. 
"Non-performance  of  the  carrier's 
contract  to  transport  live-stock 
to  an  extraordinary  terminal 
point  is  not  excused  by  the  fact 
that  the  connecting  line  over 
which  the  shipment  was  to  be 
carried  was  prevented  by  a  mob 
from  doing  business."  Where 
goods  are  not  shipped  by  the  con- 
signor in  accordance  with  the  di- 
rections of  the  buyer,  and  are  de- 
posited at  the  end  of  the  car- 
rier's road  and  he  refuses  to  de- 
liver them  to  the  connecting  line 
on  the  ground  that  the  liability 
of  the  latter  is  greater  than  the 
exemptions  contained  in  the 
original  contract,  and  while  on 
deposit  they  are  destroyed  by  fire, 
without  notice  given  to  the  con- 
signor, the  carrier  is  liable  for 
the  loss.  Rawson  v.  Holland,  59 
N.  Y.  611,  18  Am.  Rep.  394.  In 
Memphis,  etc.  R.  Co.  v.  Stockard, 
58  Tenn.  (11  Heisk.)  568,  it  was 
held  a  railroad  company  is  liable 
for  its  failure  to  deliver  freight 
at  a  placee  beyond  its  own  line 
and  on  the  line  of  the  connecting 


carrier,  in  the  absence  of  a  spec- 
ial contract  limiting  its  liability, 
though  the  connecting  carrier  re- 
fuses to  receive  the  freight  and 
advance  freight  charges  due  the 
first  carrier.  Johnson  v.  N.  Y. 
Cent.  R.  Co.,  39  How.  Pr.  127; 
East.  Tenn.,  etc.  R.  Co.  v.  Nelson, 
1  Coldwell    (Tenn.)    272. 

17  In  American  Sugar  Refining 
Co.  V.  McGhee,  96  Ga.  27,  it  was 
held  that  "where  goods  are 
shipped  over  the  lines  of  connect- 
ing railways  to  a  consignee  desig- 
nated in  the  bill  of  lading,  and  on 
arrival  at  designation  the  re- 
ceivers of  the  railway  company 
which  completed  the  transporta- 
tion tendered  delivery  to  that 
consignee  and  he  declined  to  re- 
ceive the  goods,  the  liability  of 
the  receivers  as  common  carriers 
thereupon  ceased,  and  they  be- 
came liable  as  warehousemen  only, 
and  as  such  were  charageable  with 
the  duty  of  notifying  the  con- 
signor of  the  consignee's  refusal 
to  accept  the  goods,  with  the  fur- 
ther duty  of  holding  the  same  sub- 
ject to  the  order  of  the  consignor." 


§    535.]  CONNECTING    CARRIERS.  559 

the  initial  contract,  if  the  initial  or  connecting  carrier  who  thus 
delivers  the  goods  fails  to  inform  the  connecting  carrier  fully 
as  to  the  terms  of  the  shipment;  so  it  may  be  said  to  be  the  duty 
of  the  carrier  who  makes  such  delivery  to  inform  the  connecting 
carrier  at  the  same  time  fully  as  to  the  terms  of  the  contract  of 
shipment.^^ 

§  535.  Authority  to  make  contract  binding  connecting  car- 
riers.— The  business  of  the  common  carrier  is  generally  carried 
on  through  agents,  and,  as  we  have  seen,  the  initial  carrier  who 
makes  a  through  contract  for  rates  and  carriage  beyond  its  own 
line,  especially  where  its  liability  is  limited  to  its  own  line,  and 
assumes  liability  only  to  deliver  the  goods  to  the  connecting  car- 
rier, acts  in  the  matter  of  making  the  through  rate  or  the  time 
for  transporting  the  goods,  or  as  to  any  other  stipulation,  as  the 
agent  of  the  connecting  carrier.  But  as  the  business  of  making 
the  shipment,  at  the  point  where  the  goods  are  shipped,  is  trans- 
acted usually,  if  not  always,  by  a  station  agent  or  freight  agent 
of  the  initial  carrier,  the  question  has  been  raised,  Has  such  an 
agent  of  the  initial  carrier  authority  to  make  a  contract  that  will 
be  binding  upon  the  connecting  carrier?  The  initial  carrier,  or 
its  general  agent,  it  is  said,  may  make  such  a  contract,  especially 
where  there  are  shipping  arrangements  between  the  roads;  but 
how  about  this  agent  of  the  agent  of  the  connecting  carrier  mak- 
ing such  a  contract— the  station  agent  of  the  initial  carrier  bind- 
ing the  connecting  carrier? 

It  would  seem,  on  principle,  that  the  station  agent,  even  if  he 
be  held  as  acting  as  a  sub-agent  of  the  connecting  carrier,  would 
be  able  to  bind  the  connecting  carrier  upon  the  ground  that  the 
making  of  the  contract  to  carry  the  goods,  and  the  making  of  the 
rate,  or  the  making  of  any  other  stipulation,  if  not  extraordinary 
and  unusual,  must  be  held  to  be  simply  an  incident  to  the  busi- 
ness of  making  the  shipment,  and  the  law  will  presume  that  a 
principal  must  expect  that  this  kind  of  work  will  be  done  by  sub- 
agents  appointed  by  the  initial  carrier ;  that  because  of  the  mod- 
em and  usual  manner  of  doing  business,  which  is  well  under- 
stood by  connecting  carriers  and  by  the  public,  it  may  be  said 

18  And  in  Lesinski  v.  G.  W.  D.  latter   refused    them,    the    former 

Co.,  10  Mo.  App.  134,  it  was  held  did  not  fulfill  its  duty  by  storing 

that  where  a  carrier  agreed  after  the  goods,  but  that  notice  should 

transporting     goods     to     deliver  have    been    sent    either    to    con- 

them  to  another  carrier,  and  the  signer  or  consignee. 


560  CAERIERS.  [§'  536. 

that  the  connecting  carrier  knows  that  it  is  necessaiy,  in  order 
to  transact  the  business,  that  the  initial  carrier  shall  employ 
agents  to  perform  this  duty  at  the  several  points  of  shipment. 

There  is  another  principle  of  the  law  of  agency  very  promi- 
nently in  view  that  may  be  invoked  in  this  class  of  cases.  The 
general  public  have  rights  in  the  matter.  It  is  generally  known, 
in  fact  it  is  a  matter  of  common  knowledge,  that  railroad  com- 
panies and  other  carriers,  whether  initial  or  connecting  carriers, 
are  anxious  to  carry  the  goods  that  are  being  shipped.  Often 
they  have  special  agents  operating  at  places  off  their  line  of 
road  soliciting  the  carriage  of  the  freight  that  is  offered.  Ship- 
pers know  that  ordinarily  the  arrangements  for  shipping  are 
made  by  the  agents  at  the  several  stations;  that  through  ship- 
ments made  by  them  are  accepted  by  connecting  roads,  and  the 
goods  carried  to  their  destination.  So  it  can  be  said,  and  there 
can  be  no  doubt,  that  because  of  the  general  course  of  the  busi- 
ness, so  far  as  the  public  and  the  general  understanding  of  the 
shippers  are  concerned,  these  agents  have  at  least  apparent  au- 
thority to  act  not  only  for  their  own  company,  but  for  connect- 
ing lines,  and  public  policy  will  not  allow  a  connecting  carrier 
to  defend  upon  the  ground  that  such  agents  do  not  have  au- 
thority to  act  unless  the  contract  made  by  them  is  unusual  or 
fraudulent.  The  public's  interest  must  be  subserved,  and  the 
law  will  demand  that  in  this  business  the  usual  and  generally 
understood  procedure  shall  be  binding  upon  the  carriers. 

In  Budell  et  al.  v.  Ogdensburg  Transit  Co}^  the  court,  quoting 
from  Lawson  on  Carriers,  say:  "As  common  carriers,  especially 
at  the  present  day,  transact  the  greater  part,  if  not  all,  of  their 
business  with  the  public  through  agents  and  servants^  it  is  plain 
that  the  public  have  a  right  to  assume  that  they  are  authorized 
to  do  whatever  they  attempt  to  do''  The  court  further  say: 
"This  rule  does  not  include  contracts  so  unusual  and  extra- 
ordinary that  they  cannot  reasonably  be  included  within  the 
general  authority." 

§  536.  Actions  for  loss  or  damage. — The  question,  against 
which  of  the  carriers  shall  the  owner  of  the  goods  bring  his  action, 
in  case  of  loss  or  injury,  where  the  shipment  has  been  over  sev- 
eral lines,  has  been  very  much  discussed  both  in  this  country  and 
in  England,  and  there  is  by  no  means  harmony  among  the  de- 
cisions upon  this  question. 

18 117  Mich.  508;   Lawson,  Con.  of  Carriers,  §  229. 


§    536.]  CONNECTING   CARRIERS.  561 

The  decisions  seem  to  group  themselves  under  three  distinct 
holdings.  First,  that  where  goods  have  been  injured,  the  con- 
signee or  consignor  may  bring  his  action  against  the  initial  car- 
rier and  hold  him  liable  for  the  loss  or  injury.  In  the  absence  of 
an  express  contract  the  English  courts  hold  to  this  theory,  main- 
taining that  there  is  a  presumption  that  the  first  carrier  is  liable, 
and  this  even  though  it  refused  to  take  pay  for  continuous  ship- 
ment or  for  any  shipment  beyond  its  own  road,  holding  that  the 
acceptance  of  the  goods  and  the  shipment  of  them  to  their  des- 
tination, without  positively  limiting  his  liability  by  contract, 
was  prima  facie  an  undertaking  to  carry  them  to  their  destina- 
tion. Second.  A  second  class  of  authorities  holds  that  the  last 
carrier  is  liable,  and  that  the  action  may  be  brought  against  him ; 
this  being  upon  the  presumption  that  the  goods  must  have  been 
received  in  good  order  when  they  came  to  the  line  of  the  last 
carrier.  As  where  goods  in  a  box  were  shipped  by  three  succes- 
sive carriers,  and  when  delivered  to  the  consignee,  although  there 
were  no  external  indications  of  the  fact,  the  box  was  found  to 
have  been  opened  and  certain  goods  abstracted  therefrom,  it  was 
held  that  the  jury  may  presume,  in  the  absence  of  evidence  to 
the  contrary,  that  the  box  remained  unopened  until  it  came 
into  the  possession  of  the  last  carrier,  and  that  the  loss  occurred 
through  its  fault.  The  court  say:  "As  the  common  carrier  next 
in  order,  the  defendant  was  bound  to  receive  and  transport  the 
boxes  when  tendered.  It  was  bound  to  receive  them  in  the  con- 
dition in  which  they  were.  It  had  no  means  of  investigation  or 
inquiry  into  their  contents.  It  had  no  right  to  open  the  boxes 
or  examine  what  they  contained,  and,  if  it  had,  could  not  have 
detected  the  loss  by  such  examination,  and  so  have  refused  to 
receive  and  carry.  It  must  take  the  boxes  as  they  were,  with  no 
external  signs  or  appearances  of  breaking  or  injury,  and  nothing 
to  give  warning  that  the  cloths  had  been  previously  abstracted 
or  removed,  and  carry  them  forward  to  their  place  of  destina- 
tion. Under  these  circumstances,  the  rule  or  presumption  of 
law  which  makes  the  defendant  liable  for  the  value  of  the  goods, 
unless  (what  seems  quite  impossible  to  be  done)  it  shows  where 
the  loss  actually  took  place,  must  be  supported  by  most  clear 
and  satisfactory  reasons  of  policy  or  necessity,  or  otherwise  it 
should  be  rejected.  It  must  be  shown  that  greater  injustice  or 
more  certain  injustice  will  ensue  from  its  rejection  than  will  or 
may  follow  from  its  adoption.  I  have  been,  as  I  have  said,  in 
36 


562  CARRIERS.  [§    536. 

very  considerable  doubt;  but  examination  convinces  me  that 
there  are  such  reasons,  and  that  both  principle  and  authority- 
sustain  the  presumption.  The  very  uncertainty  which  exists  as 
to  when  or  where  the  cloths  were  taken  out,  or  in  whose  custody 
the  boxes  then  were,  and  the  difficulty  or  impossibility  of  ever 
ascertaining  those  facts,  make  the  presumption  absolutely  neces- 
sary. What  is  difficult  or  impossible  for  the  defendant  to  find 
out  with  respect  to  the  breaking  and  larceny  is  still  more  difficult 
or  impossible  for  the  plaintiffs.  The  defendant  possesses  means 
and  facilities  which  the  plaintiffs  do  not.  To  say  that  the  plaint- 
iffs shall  not  recover  because  they  have  not  ascertained  and 
proved  that  the  cloths  were  taken  while  the  boxes  were  in  the 
custody  of  the  defendant,  is,  in  effect,  to  say  that  they  are  with- 
out remedy  in  the  law  for  their  loss.  If  required  to  make 
such  proof  to  establish  a  cause  of  action  against  this  com- 
pany, then  the  same  proof  would  be  required  in  a  suit  against 
either  of  the  others,  and  the  plaintiffs  could  not  recover  against 
any,  although  it  is  certain  that  one  of  them  is  or  should  be 
responsible  for  the  loss.  If  the  plaintiffs  knew  or  could  prove  in 
whose  custody  the  boxes  were  when  the  cloths  were  taken,  there 
would  be  no  hardship,  perhaps,  in  requiring  them  to  sue  that 
company.  But  the  plaintiff's  do  not  know,  nor  is  it  possible  for 
them  to  ascertain  this,  and,  unless  aided  by  presumption,  they 
are  without  remedy,  which  is  a  positive  and  certain  injustice.  I 
know  of  no  more  reasonable  or  proper  presumption  to  apply 
than  that  here  invoked. ' '  -"  Third.  A  third  class  of  decisions 

aoLauglilin  et  al.  v.  Chicago  &  Conn.  482;  and  by  Smith,  J.,  in 
N.  W.  Ry.  Co.,  28  Wis.  204,  210.  McDonald  v.  Western  R.  Co.,  34 
The  court  further  say :  "The  dif-  N.  Y.  501,  502.  In  the  first  named 
Acuities,  nay  even  impossibilities,  case  the  chief  justice  says:  'Any 
by  which  owners  would  be  beset  rule  which  should  have  the  effect 
if  put  to  the  task  of  ascertaining  to  defeat  or  embarrass  the  own- 
where  their  packages  or  boxes  er's  remedy  would  be  in  direct 
were  broken  open  and  contents  conflict  with  the  principles  and 
plundered  when  in  transit  over  the  whole  policy  of  the  common 
our  long  routes,  are  well  known,  law.'  I  am  of  the  same  opinion, 
and  are  illustrated  by  the  facts  I  think  this  is  no  time  to  relax 
in  this  case.  They  are  also  por-  the  stringent  and  wholesome 
trayed  by  Chief  Justice  Perley  in  rules  of  the  common  law,  and 
Lock  Co.  v.  Railroad  Co.  (Sup.  must  hold  that  the  doctrine  of 
Ct.  N.  H.),  10  Am.  Law  Reg.  (N.  presumption  was  rightly  applied 
S.)  260,  263;  by  Waite,  C.  J.,  in  by  the  court  below  in  aid  of  the 
Elmore  v.   Naugatuck  R.  Co.,   23  plaintiffs  in  this  case."    Faison  v. 


§    536.]  CONNECTING  CARRIERS.  563 

holds  that  there  is  no  presumption  as  to  where  the  goods  were 
lost  or  injured,  but  that  it  is  a  subject  of  proof,  and  that  the 
plaintiff  in  order  to  recover  must  show  which  of  the  carriers  was 
liable  for  the  injury. 

A  case  that  is  often  quoted  and  is  well  reasoned  out  is  the 
ease  of  M.  H.  &  0.  Co.  v.  Kirkwood,'^^  the  court  holding  that  the 
plaintiff  is  bound  to  show  affirmatively  that  the  goods  were  de- 
livered in  good  order  to  the  carrier  whom  he  seeks  to  make 
liable  for  the  injury;  for  example,  if  the  last  carrier  is  sued, 
that  the  plaintiff'  must  show  that  he  received  the  goods  in  good 
order,  and  that  there  is  no  presumption  that  would  relieve  the 
plaintiff  from  such  proof.  In  the  case  under  discussion  the  goods 
were  shipped  in  New  York,  turned  over  at  Buffalo  to  the  Lake 
Superior  Transit  Company,  and  delivered  by  the  transit  com- 
pany at  Marquette  to  the  railroad  company,  the  last  carrier, 
against  whom  the  action  was  brought.  The  court  below  charged 
the  jury  that  if  the  goods  were  delivered  in  New  York  in  good 
order  to  the  first  carrier,  they  would  have  a  right  to  infer  that 
they  continued  so  when  received  by  defendants,  unless  evidence 
was  given  which  showed  the  contrary. 

The  court  held  this  charge  to  be  erroneous,  and  that  the  plaint- 
iff was  bound  to  show  affirmatively  that  the  goods  were  delivered 
in  good  order  at  IMarquette  to  the  defendants.  The  court  say: 
"We  think  this  rule  is  just,  and  are  not  at  all  disposed  to  depart 
from  it.  A  carrier  has  no  means  in  a  case  like  this  of  opening 
packages  and  examining  their  contents.  Unless  there  is  some 
outward  token  which  is  suspicious,  he  may  and  must  take  the 


Railroad  Co.,  69  Miss.  569;   Rail-  Ga.    428.      "Presumed   that   goods 

road  Co.  v.  Brewing  Co.,  96  Tenn.  reached   last   carrier   in    as   good 

677,  holding  that  there  is  a  pre-  condition    as    when    delivered    to 

sumption  that  when  the  goods  are  first    carrier."      Shriver    v.    Rail- 

leceived  in  good  order  they  ought  road   Co.,   24   Minn.    506,   34   Am. 

to   be  in   good   order  to   the  last  Rep.  353;  Leo  v.  Railroad  Co.,  30 

carrier.      Evajis    v.    Atlanta,    etc.  Minn.  438;  Flynn  v.  Railroad  Co., 

R.    Co.,    56    Ga.    498.      Goods    re-  43  Mo.  App.  424;    Smith  v.  N.  Y. 

ceived  by  a  railroad  company  and  Cent.  R.  Co.,  43  Barb.  225,  41  N. 

delivered   over   its   own   road   are  Y.  620;   Dixon  v.  Railroad  Co.,  74 

presumed   to  have  been   received  N.  C.  538;   Railroad  Co.  v.  Pratt, 

in  good  order  if  nothing  appears  22  Wall.  123. 

to  the  contrary.     Cent.,  etc.  R.  Co.  2145   Mich.   51;    Rolfe   v.   Lake 

v.    Bayer,    91    Ga,    115;    Forester  Shore,  etc.  R.  Co.,  144  Mich.  169, 

V,    Railroad    Co.,    92    Ga.    699,    96  107  N.  W.  899.  ' 


564  CARRIERS.  [§    536. 

articles  and  forward  them  on  the  usuai  terms.  lie  is  bound  in 
law  to  deliver  them  in  the  condition  in  which  he  receives  them. 
But  there  can  be  no  further  responsibility;  and  any  rule  of  law 
which  would  make  him  responsible  actually  or  presumptively  for 
the  conduct  of  previous  independent  carriers  would  be  grossly 
unfair,  and  subject  him  to  losses  against  which  he  could  have  no 
protection.  He  has  nothing  to  do  with  any  of  the  previous  deal- 
ings with  the  property,  and  no  means  of  informing  himself  about 
them.  We  cannot  see  how  this  case  is  different  from  what  it 
would  have  been  if  the  plaintiffs  themselves  had  delivered  the 
boxes  to  the  company  at  Marquette.  In  law  the  transit  company 
acted  merely  as  plaintiff 's  agent  in  turning  them  over,  and  cannot 
be  treated  as  representing  the  Marquette  Railroad  Company  for 
any  purpose  without  reversing  the  whole  order  of  business. 
.  .  .  The  presumption  that  things  remain  unchanged  applies 
in  such  a  case  as  the  present  just  as  forcibly  backward  as  for- 
ward. It  may  quite  as  reasonably  be  presumed  that  the  goods 
were  delivered  at  Negaunee  and  Ispheming,  in  the  condition  in 
which  they  were  received  at  Marquette,  as  that  they  came  to 
Marquette  as  they  left  New  York.  The  goods  were  certainly 
damaged  when  they  reached  their  destination.  To  assume  that 
they  were  damaged  after  they  left  Marquette,  and  not  on  any 
of  their  previous  removals,  is  to  make  a  very  arbitrary  assump- 
tion which  has  no  more  foundation  in  probability  than  any 
other.  If  it  were  worth  while  to  enlarge  on  what  is  confessedly 
a  presumption  not  resting  on  any  sure  foundation  in  experience, 
it  might  very  well  be  questioned  whether  such  a  presumption  is 
admissible  at  all  as  applied  to  things,  the  position  of  which  does 
not  remain  either  fixed  in  place  or  free  from  disturbance  by 
human  agencies.  But  we  need  not  enlarge  on  this  because  the 
nature  of  the  suit  itself  raises  different  presumptions  which 
are  well  recognized.  This  suit  is  based  on  the  negligence  of  the 
carrier.  It  can  only  be  maintained  on  the  theory  that  the  car- 
rier or  its  servants  did  not  properly  care  for  or  handle  the  goods. 
There  is  no  rule  better  established  or  more  righteous  than  the 
rule  that  any  one  who  claims  a  right  to  damages  for  negligence 
must  prove  it.  The  presumption  that  a  party  sued  has  done  no 
wrong  must  prevail  till  wrong  is  shown.  A  carrier's  obligation 
to  carry  safely  what  he  received  safely  is  independent  of  care  or 
negligence.    But  in  the  absence  of  proof  that  there  was  property 


§    536.]  CONNECTING  CARRIERS.  565 

delivered  to  him,  or  safely  delivered  to  him,  any  presumption 
that  he  received  it  is  one  which  goes  beyond  and  behind  the  duty 
of  a  carrier  and  enters  into  the  origin  and  making  of  the  con- 
tract. Until  such  property  comes  into  his  hands  there  is  nothing 
for  a  contract  to  act  upon,  and  the  contract  is  not  proved  until 
that  is  prved. ' '  -^ 

It  would  seem,  however,  that  the  great  weight  of  authority 
in  the  United  States  is,  that  the  plaintiff  may  bring  his  action 
against  the  last  carrier,  and  that  the  court  may  presume  that  the 
goods  were  received  by  him  in  good  condition,  and  that  the 
burden  of  proving  otherwise  is  upon  the  carrier. 

22  Gilbert  v.  Dale,  5  Adol.  &  El.  v.  Chicago,  etc.  Co.,  21  Mo.  App. 

543;  Mildand  Ry.  Co.  v.  Bromley,  333;    Cavallo  v.  Tex.  Pac.  R.  Co., 

17  Q.  B.  372;    Farmington  Co.  v.  42  Pac.  918.* 
Railroad  Co.,  166  Mass.  154;    Orr 


CHAPTER  X. 


COMPENSATION,  DISCRIMINATION  AND  LIEN  OF  THE  CARRIER. 


§  537.  Compensation. 

538.  Amount   depends   generally 

on   goods   delivered. 

539.  Carrier's  special  security  in 

and  right  to  possession 
of  goods. 

540.  Carrier    may    protect 

his   possession. 

541.  The    carrier   may   in- 
sure   the   goods. 

542.  "When  can  the  carrier 

sell   the   goods. 

543.  The  amount  charged. 

544.  Right  of  carrier  to  collect 

its  advances  to  connect- 
ing carriers. 

545.  Who  is   liable   to   the   car- 

rier for  the  freight. 

546.  Where  the  freight  is  only 

carried  a  part  of  the  dis- 
tance contracted  for — 
Pro  rata  itineris. 

547.  Where       goods        sjiipped 

against  the  will  of  the 
owner,  as  by  one  not 
having  the  right  to  ship. 


As    TO    DiSCBIMINAtlON. 

548.  Law   forbidding   applies  to 

all  branches  of  carrier's 
business. 

549.  Relates    to    facilities 

for  shipment. 

550.  The  discrimination  that  is 

forbidden. 

551.  Regulation  by  statute 

of  states. 

552.  The     interstate     commerce 

act. 

The  Lien  of  the  Caebieb. 

553.  Similar  to  lien  of  the  bailee 

— Special,  not  general. 

554.  When  does  the  lien  attach. 

555.  When    shipment    made    by 

one    without    authority. 

556.  For  what  charges  will  the 

lien  attach. 

557.  The  contract  for  shipment 

must  be  fulfilled. 

558.  The  lien  how  lost,  satisfied 

or  discharged. 

559.  Lien  satisfied. 

560.  Lien  discharged. 


§  537.  Compensation. — Because  of  the  contract  creating  the 
relation  the  carrier  has  a  right  to  compensation  for  carrying  the 
goods,  and  may,  as  a  condition  precedent  to  receiving  them  for 
carriage,  demand  that  he  be  paid  reasonable  charges  for  trans- 
portation; but  the  right  to  prepayment  is  waived  if  not  so  de- 
manded. The  compensation  for  carrying  the  goods  may  be  col- 
lected by  the  carrier  by  an  action  against  the  party  liable  for 
the  payment,  but  in  such  an  action  the  shipper  or  consignee 
(defendant)  may  recoup  for  any  failure  upon  the  part  of  the 
carrier  which  has  resulted  in  damage  to  the  goods,  or  for  failure 
to  deliver  as  contracted,  and  offset  such  damages  against  the 


§    537.]  COMPENSATION  AND  LIEN  OF  CARRIER.  567 

carrier's  claim.  And  lie  may  assert  and  have  the  same  right  and 
privilege  against  the  claim  of  the  carrier  for  damages  where 
there  is  no  special  contract,  for  unreasonble  delay,  or  for  injury 
or  damage.^ 

§  538.  Amount  depends  generally  on  goods  delivered. — As 
a  general  rule,  and  with  but  very  few  exceptions,  it  may  be  said 
that  the  carrier  can  only  collect  compensation  for  the  carrying 
of  the  goods  actually  delivered  to  the  consignee;  but  it  will  be 
seen  that  this  rule  should  not  be  universal  or  without  exception, 
for  it  may  be  that  he  has  been  prevented  from  making  full  de- 
livery of  the  goods  because  of  some  fault  of  the  shipper  or  the 
consignee.  And  where  the  carrier  had  carried  a  cargo  of  coal  to 
the  place  of  destination  and  offered  to  deliver  it,  but  the  owner 
was  not  ready  to  receive  it,  and  it  was  left  on  board  the  plaint- 
iff's vessel,  which,  after  waiting  several  days  for  an  opportunity 
to  discharge  her  cargo,  was  carried  away  by  a  freshet  and  her 
cargo  lost  overboard,  so  that  it  could  not  be  delivered  to  the 
owner,  it  was  held  that  the  plaintiff's  contract  as  a  carrier  had 
been  performed,  and  he  was  entitled  to  recover  the  stipulated 
freight  being  liable  only  for  the  want  of  ordinary  care  after  the 
offer  to  deliver.^ 

But  where  the  carrier  was  prevented  from  delivering  the 
freight,  which  by  law  he  was  bound  to  deliver,  because  of  the  act 
of  God,  it  has  been  held  that  even  in  such  case  he  could  only  re- 
cover for  the  freight  actually  delivered,  the  court  saying:  "He 
(the  carrier)  was  therefore  excused  from  delivering  that  part 
of  the  cargo  which  was  destroyed  by  inevitable  necessity,  but  he 
could  recover  freight  only  for  that  portion  delivered.  As  to  the 
part  destroyed,  the  owner  must  lose  the  goods  and  the  carrier  the 
freight. ' ' ' 

1  Hutchinson  on  Carriers,  sec.  livery  of  all  of  the  property 
443;  The  Success,  7  Blatch.  551.  shipped,  the  delivery  of  the  whole 
In  Hinsdell  v.  Weed,  5  Denio,  172,  will  be  a  condition  precedent  to 
where  the  carrier  contracted  to  the  recovery  of  the  freight  against 
carry  flour  from  Buffalo  to  Albany,  the  consignee,  though  he  accept 
and  in  the  course  of  the  trip  he  and  receive  a  part,  and  that  the 
lost  part  of  the  flour  and  sold  his  consignee  might  recoup  the  dam- 
boat,  the  remainder  of  the  cargo  ages  on  account  of  the  property 
being  on  hand,  it  was  held :  If  not  delivered  in  the  action  against 
the  directions  of  the  consignors  him  for  freight. 
to  the  consignee,  as  contained  in  2  Clandaniel  v.  Tuckerman,  17 
or  annexed  to  the  bill  of  lading.  Barb.  184. 
be  to  pay  freight  only  on  the  de-  s  Price   v.   Hartshorn,   44   Barb. 


568  CARRIERS.  [§    540. 

Where  a  carrier  carried  goods  to  a  particular  place  under  a 
contract,  but,  before  the  owner  had  an  opportunity  to  receive 
them,  a  part  of  them  were  lost  without  the  fault  of  the  carrier, 
it  was  held  that  the  carrier  was  not  entitled  to  any  compensation 
for  the  carrying  of  the  goods  lost.*  And  where  by  contract  the 
shipper  assumed  all  risk  and  loss  of  its  property  by  fire  while  in 
charge  of  the  carrier,  it  was  held  that  the  carrier  was  not  en- 
titled to  recover  freight  on  property  destroyed  by  fire  before 
delivery  to  the  consignee.^ 

§  539.  Carrier's  special  security  in  and  right  to  possession 
of  goods. — The  carrier,  it  will  be  remembered,  is  the  bailee  of 
the  goods  delivered  to  him  for  transportation;  and  more  than 
that,  having  accepted  them  for  carriage,  and  having  performed 
service  in  that  respect,  he  has  a  special  interest  in  the  goods  at 
least  to  the  extent  of  his  service,  and  so  has  a  right  to  the  pos- 
session of  the  property,  and  while  so  possessing  it  as  a  carrier 
and  bailee  may  defend  his  possession  against  any  one  who  under- 
takes to  deprive  him  of  it  in  violation  of  his  bailment  rights,  even 
against  the  owner  himself  if  he  should  take  it  from  him  without 
discharging  the  carrier's  lien  for  compensation,  or  in  violation 
of  his  rights  under  his  contract  for  carriage." 

§  540.  Carrier  may  protect  his  possession. — The  carrier 

is,  during  the  time  the  goods  are  in  his  possession  as  carrier, 
subrogated  to  all  the  rights  of  the  owner  so  far  as  caring  for 
the  goods  and  having  the  right  to  defend  the  possession  of  them ;'' 
and  so  if  the  goods  are  stolen  or  injured  the  law  will  recognize 
this  right  in  the  carrier  to  protect  them.  If  stolen,  ownership 
of  the  goods  by  the  carrier  may  be  alleged  in  the  indictment  for 
larceny.*  The  carrier  may  recover  the  possession  if  wrongfully 
taken  from  him  by  replevin  or  trover,  and  it  is  said  in  an  action 
of  trover  he  will  be  permitted  to  recover  a  judgment  for  the 

655,  668;    affirmed,  44  N.  Y.  94,  4  Standard  Oil  Co.,  20  Hun  (N.  Y.), 

Am.  Rep.  645;   Harris  v.  Rand,  4  39;   affirmed,  87  N.  Y.  486. 

N.  H.  259.  Where  a  part  of  a  cargo  c  story     on     Bailm.,     sec.     303; 

of  salt  was  lost  by  inevitable  ac-  Young  v.  Kimball,  23  Pa.  St.  193; 

cident,  it  was  held  that  the  car-  Van  Baalen  v.  Dean,  27  Mich.  104. 

rler  could  not  collect  for  the  por-  7  Hagerstown   Bank  v.   Express 

tion  delivered.  Co.,  45  Pa.  St.  519. 

4  Russell   Mfg.   Co.   v.   New  Ha-  s  story     on     Bailm.,     sec.     93^,- 

ven  S.  S.  Co.,  52  N.  Y.  657;   Mc-  Merrick    T.    Brainard,    38    Barb. 

Kee  V.  Hecksher,  10  Daly,  393.  574. 

5N.    Y.    Cent.    &    H.    R.    Co.    v. 


§    542.  j  COMPENSATION  AND  LIEN  OP  CARRIER.  569 

full  value  of  the  goods  claimed,  and  to  retain  in  his  own  right 
the  amount  due  for  his  services  and  hold  the  balance  in  trust  for 
the  owner.®  If  the  goods  have  been  lost  and  the  owner  has  re- 
covered of  the  carrier  for  the  value  of  the  goods,  the  carrier  is 
entitled  to  the  full  amount  he  may  recover  from  the  person  or 
persons  who  deprived  him  of  them,  and  in  such  case  the  carrier 
becomes  the  owner  and  succeeds  to  all  the  rights  and  privileges 
of  the  owner.  Indeed,  he  becomes  the  equitable  assignee  of  the 
owner  of  the  property.^** 

§  541.  The  carrier  may  insure  the  goods. — The  interest 

of  the  carrier  is  sufficient,  and  to  that  extent  he  may  insure  the 
goods  not  only  for  the  amount  of  his  special  property  in  them, 
but  for  the  full  amount  of  the  property.  It  has  been  held  that 
where  the  carrier  has  obtained  insurance  upon  the  property  for 
the  full  amount  and  the  property  is  lost  by  fire,  he  may  recover 
the  amount  of  the  insurance  although  he  had  by  contract  limited 
his  liability  to  the  extent  that  he  was  not  to  be  liable  if  lost  by 
fire.  But  in  such  case  the  whole  amount  of  insurance  over  and 
above  the  amount  due  the  carrier  for  compensation  inures  to 
the  benefit  of  the  owner.^^  But  the  carrier  could  not  insist  upon 
the  owner  insuring  the  goods  as  a  condition  precedent  to  his  re- 
ceiving them  for  carriage,  because  that  would  be  antagonistic  to 
the  rule  that  the  carrier  must  receive  and  carry  freight  for  all 
who  apply,  if  the  freight  offered  is  in  the  line  of  his  business.^ - 

§  542.  When  can  the  carrier  sell  the  goods. — To  satisfy 

his  lien  the  carrier  cannot  sell  the  goods  except  as  authorized  by 
law.  In  most  of  the  states  a  foreclosure  of  the  lien  is  provided 
by  statute,  and  in  such  case  the  statute  must  be  followed.  There 
are  circumstances,  however,  when  the  carrier  is  not  only  per- 
mitted to  sell  but  it  is  his  duty  to  sell  the  goods ;  not  because  of 
an  unsatisfied  lien  for  his  compensation,  but  because  of  his  duty 
to  use  diligence  in  promoting  the  best  interests  of  the  owner  while 
the  property  is  under  his  control,  and  to  this  end  he  is  bound 

9  Ingersoll  v.  Van  Bokkelin,  7  "  Insurance  Co.  v.  Railroad  Co., 
Cow.  670;  Strong  v.  Adams,  30  63  Tex.  475;  Waring  v.  Indemnity 
Vt.  221;  Hutch,  on  Carriers,  sec.  Ins.  Co.,  45  N.  Y.  606;  Eastern  R. 
426.  Co.   V.    Relief   Ins.    Co.,   98   Mass. 

10  Hagerstown  Bank  v.  Express  420;  Commonwealth  v.  Hide  & 
Co.,  45  Pa.  St.  49;  White  V.  Webb,  Leather  Co.,  112  Mass.  136,  7 
15  Conn.  302;   Hickok  v.  Buck,  22       Exch.  323. 

Vt.  149;    Little  v.  Posset,  34  Me.  12  Inman  v.  South  Car.  Ry.  Co., 

545.  129  U.  S.  128. 


570  CARRIERS.  [§   542. 

to  dispose  of  the  goods  to  the  best  advantage;  as,  lor  example, 
when  the  carrier  cannot  carry  the  goods  to  their  destination,  or 
obtain  them  to  be  carried  because  of  disaster  to  his  ship  while  at 
sea,  or  under  circumstances  when  he  is  rendered  helpless  as  to  the 
carrying  of  the  property — as  where  the  goods  are  perishable  and 
will  not  last  to  be  carried  to  their  destination.  In  such  case  the 
carrier  may  sell  the  goods  to  the  very  best  advantage.  It  is  said, 
however,  that  he  should  sell,  if  possible,  where  there  will  be  com- 
petition ;  but  if  he  cannot  do  so  it  is  his  duty  to  communicate  to 
the  owner  of  the  property  before  he  makes  such  sale.^^  The  law 
demands  that  there  must  be  the  utmost  fairness  in  such  cases  on 
the  part  of  the  carrier.  His  conduct  will  at  all  times  be  open  to 
investigation  of  the  owner  and  by  the  court;  and  even  if  the 
owner  accepts  the  amount  received  by  the  carrier  upon  such  sale 
of  the  goods,  this  will  not  preclude  him  from  disputing  the  claim 
of  the  carrier  where  he  has  not  consented  to  the  sale;  nor  will 
it  preclude  him  from  a  further  recovery  in  case  of  fraud  or  un- 
fair dealing  or  negligence  on  the  part  of  the  carrier.  The  rule 
is  discussed  in  the  case  of  The  Julia  Blake,  above  cited.  The 
court  say:  "The  master  can  neither  sell  nor  hypothecate  the 
cargo,  except  in  case  of  urgent  necessity,  and  his  authority  for 
that  purpose  is  no  more  than  may  reasonably  be  implied  from 
the  circumstances  in  which  he  is  placed.  He  acts  for  the  owner 
of  the  cargo  because  there  is  a  necessity  for  some  one  to  do  so, 
and  like  every  agent  whose  authority  arises  by  implication  of 
law,  he  can  only  do  what  the  owner,  if  present,  ought  to  do.  Ne- 
cessity develops  his  authority  and  limits  his  powers.  "What  he 
does  must  be  directly  or  indirectly  for  the  benefit  of  the  cargo, 
considering  the  situation  in  which  it  has  been  placed  by  the 
accidents  of  the  voyage.  As  was  said  by  Sir  William  Scott  in 
The  Gratitudine,^*  by  which  the  power  of  the  master,  under  pro- 
per circumstances,  to  hypothecate  the  cargo  to  pay  the  expenses 
of  repairs  on  the  ship,  was  incontrovertibly  established:  'In  all 
cases  it  is  the  prospect  of  the  benefit  to  the  proprietor  that  is  at 
the  foundation  of  the  authority  of  the  master.     It  is  therefore 

13  Hall    V.    Ocean    Ins.    Co.,    37  57;    Ross   v.   The   Ship   Active,   2 

Fed.  371;  The  Julia  Blake,  107  U.  Wash.  C.  C.  228,  237;  The  Packet, 

S.  418.  3  Mason,  255,  259;   New  England 

1*3  C.  Rob.  240,  261;  Duncan  v.  Ins.  Co.  v.  The  Sarah  Ann,  13  Pet. 

Benson,    1    Exch.    557;    The    On-  (U.   S.)    387,  400;    The  Amelie,  6 

ward.  Law  Rep.  4  Ad.   &  Ec.   38,  Wall.  18,  27. 


§    543.]  COMPENSATION  AND  LIEN  OF  CxVRKIER.  571 

true  that,  if  the  repairs  of  the  ship  produce  no  beueht  or  pros- 
pect of  benefit  to  the  cargo,  the  master  cannot  bind  the  cargo  for 
such  repairs.  But  it  appears  to  me  that  the  fallacy  of  the  argu- 
ment, that  the  master  cannot  bind  the  cargo  for  the  repairs  of  the 
ship,  lies  in  supposing  that  whatever  is  done  for  the  repairs  of 
the  ship  is  in  no  degree  and  under  no  circumstances  done  for  the 
benefit,  or  with  the  prospect  of  benefit,  to  the  cargo ;  whereas  the 
fact  is  that,  though  the  prospect  of  benefit  may  be  more  direct 
and  more  immediate  to  the  ship,  it  may  still  be  for  the  pres- 
ervation and  conveyance  of  the  cargo,  and  is  justly  to  be  con- 
sidered as  done  for  the  common  benefit  of  both  ship  and  cargo. '  ' ' 

§  543.  The  amount  charged. — The  amount  of  freight  the  com- 
mon carrier  can  charge,  in  the  absence  of  an  express  contract 
fixing  the  amount,  must  of  course  depend  upon  the  circum- 
stances of  the  particular  case;  the  charge  must  be  a  reasonable 
one,  and  is  a  question  for  the  jury ;  however,  this  does  not  mean 
that  it  must  be  the  same  in  amount  as  is  charged  to  every  other 
customer  for  the  same  service;  not  that  charges  to  all  must  be 
equal,  but  that  it  must  be  no  more  than  reasonable;  it  may  be 
less,  but  cannot  be  more.  No  one  can  be  charged  an  excessive 
rate;  the  highest  rate  charged  must  be  reasonable.  This  is  the 
common-law  rule  regardless  of  any  statutes  that  bave  been 
passed  regulating  charges.^^ 

Where  a  railroad  company  compelled  the  plaintiff  to  pay  for 
lumber  shipped  over  its  road  fifty  cents  per  thousand  more  than 
it  charged  another  party  for  transporting  lumber  over  its  road 
at  the  same  time,  it  was  held  by  the  court  "that  all  the  entire 
public  have  the  right  to  the  same  carriage  for  a  reasonable  price 
and  at  a  reasonable  charge  for  the  service  performed;  that  the 
commonness  of  the  duty  to  carry  for  all  does  not  involve  a  com- 
monness or  equality  of  compensation  or  charges."  The  court 
further  say:  "All  the  shipper  can  ask  of  a  common  carrier  is 
that  for  the  service  performed  he  shall  charge  no  more  than  a 
reasonable  sum  to  him ;  that  whether  the  carrier  charges  another 
more  or  less  than  the  price  charged  a  particular  individual  may 
be  a  matter  of  evidence  in  determining  whether  a  charge  is  too 
much  or  too  little  for  the  service  performed,  and  that  the  dif- 
ference between  the  charges  cannot  be  the  measure  of  damages 
in  any  case  unless  it  is  established  by  proof  that  the  smaller 

16  Louisville,  etc.  R.  Co.  v.  Wilson,  119  Tnd,  352. 


572  CARRIERS.  [§   544. 

charge  is  the  true  reasonable  charge  in  view  of  the  transporta- 
tion furnished,  and  that  the  higher  charge  is  excessive  to  that 
degree.  The  obligations  in  this  matter  must  be  reciprocal. 
Where  there  is  no  express  contract,  the  common-law  action  by 
the  carrier  against  the  shipper  is  for  a  quantum  meruit,  and  the 
liability  of  the  shipper  is  for  a  reasonable  sum  in  view  of  the 
service  performed  for  him.  What  is  charged  another  person,  or 
the  usual  charge  made  against  many  others,  is  matter  of  evidence 
admissible  to  ascertain  the  value  of  the  service  performed.  In 
every  case  the  legality  of  the  charge  is  established  and  measured 
by  the  value  of  the  service  performed,  and  not  by  what  is  charged 
another,  unless  what  is  charged  the  other  is  the  compensating 
sum,  in  which  event  it  is  the  proper  sum,  not  on  account  of  its 
equality,  but  because  of  the  relation  it  bears  to  the  value  of  the 
service  performed  as  an  adequate  compensation  therefor.  To 
sum  the  whole  matter  up,  the  common  law  is  that  a  common 
carrier  shall  not  charge  excessive  freights.  It  protects  the  in- 
dividual from  extortion  and  limits  the  carrier  to  a  reasonable 
rate,  and  this  is  on  account  of  the  fact  that  he  exercises  a  public 
employment,  enjoys  exclusive  franchises  and  privileges,  derived, 
in  the  case  of  defendant  here,  by  grant  from  the  state.  The  rule 
is  not  that  all  shall  be  charged  equally,  but  reasonably,  because 
the  law  is  for  the  reasonable  charge  and  not  the  equal  charge. 
A  statement  of  inequality  does  not  make  a  legal  cause  of  action 
because  it  is  not  necessarily  unreasonable.  It  would  be  a  strange 
rule  indeed  w^hich  would  authorize  a  shipper,  after  being  com- 
pelled to  pay  his  freights  according  to  established  rates,  to  look 
around  and  find  some  smaller  charge  for  the  same  service  during 
the  same  time,  which  may  be  either  as  a  gratuity  or  a  sale  of  serv- 
ice at  a  non-compensating  rate,  or  less  than  the  reasonable 
charge,  and  claim  his  damages  according  to  this  difference,  based 
upon  an  inequality  not  general  in  its  character,  but  existing  only 
by  virtue  of  a  charge  made  for  the  same  service  against  one  other 
person.  .  .  .  Whether  a  charge  made  by  A.  against  B.  is  rea- 
sonable cannot  be  determined  by  establishing  the  charge  against 
C.  for  the  same  service.  It  is  too  plain  for  argument  that  the 
higher  charge,  where  there  is  a  difference,  may  be  what  is  the 
compensating  sum,  and  the  lower  charge  may  be  too  small  for 
the  service. ' '  ^® 

i«  Johnston  v.  Pensacola  Ry.  cided  squarely  upon  the  common 
Co.  16  Fla.  623,  26  Am.  Rep.  731.  law,  the  court  has  cited  and 
In  this  case,  which  was  a  case  de-       quoted    from    the    English    cases 


^  544.] 


COMPENSATION  AND  LIEN  OF  CARRIER. 


573 


§  544.  Right  of  carrier  to  collect  its  advances  to  connecting 
carriers. — Custom  and  general  usuage,  adpoted  by  carriers  and 
generally  understood  and  acquiesced  in  by  the  public,  have  es- 
tablished rules  recognized  by  the  courts  a.s  the  law  governing  in 


and  also  from  the  American  cases. 
We  have  taken  from  the  opinion 
several  citations  and  quotations. 
"In  Peck  V.  North  Staffordshire 
R.  Co.,  decided  in  10  House  of 
Lords  Cases,  in  1863,  Mr.  Justice 
Blackburn  says:  'A  common  car- 
rier is  bound  to  carry  for  a  rea- 
sonable remuneration.'  In  one  of 
the  earlier  cases  upon  the  subject 
it  is  said  that  'where  there  is  no 
agreement  as  to  price,  the  car- 
rier might  have  a  quantum  mer- 
uit for  his  hire.'  This  means 
simply  that  he  could  recover  the 
value  of  his  service.  In  Harris 
V.  Packard,  3  Taunt.  264,  it  is 
said:  'A  carrier  is  bound  by  law 
to  carry  everything  which  is 
brought  to  him  for  a  reasonable 
sum  to  be  paid  to  him  for  the 
same  carriage  and  not  to  extort 
what  he  will.'  We  cannot  say 
that  the  carrier  is  bound  to  carry 
anything  beyond  articles  of  such 
class  as  he  is  under  a  legal  obli- 
gation to  carry,  but  it  is  unques- 
tionably true  that  his  charge 
must  be  'reasonable.'  In  the  case 
of  Citizens'  Bank  v.  Nantucket  S. 
Co.,  2  Story,  35,  Mr.  Justice  Story, 
speaking  of  the  hire  or  recom- 
Ijense  of  common  carriers,  re- 
marks that  'it  may  be  in  the  na- 
ture of  a  quantum  meruit.'  The 
same  view  is  announced  in  5 
Wend.  340,  and  in  5  Wend.  350. 
Says  Parke,  B.,  in  Pickford  v. 
Grand  Junction  R.  Co.,  8  M.  & 
W.  378:  'The  carrier  is  bound  to 
receive  the  goods  on  the  money 
being  paid  or  tendered,  and  the 
bailor  to  pay  the  reasonable 
amount    demanded.'    In    2    Steph. 


(N.  P.)  978,  it  is  said  'common 
carriers  are  bound  to  receive  and 
carry  the  goods  of  the  subject  for 
a  reasonable  reward.'  In  1  Du- 
vall,  146,  the  court  of  appeals  of 
Kentucky  says:  'A  common  car- 
rier cannot,  like  a  merchant  or 
mechanic,  consult  his  pleasure  or 
caprice  as  to  the  conduct  of  his 
business.  The  law  makes  it  his 
duty,  when  he  can  conveniently 
do  so,  to  receive  and  carry  goods 
for  any  person  whatsoever  for  a 
reasonable  hire.'  .  .  .  That 
principle  was  followed  up  in  the 
case  of  Bolt  v.  Stennett,  8  Term 
Rep.  606;  for  there,  the  quay  be- 
ing one  of  the  public  quays  li- 
censed under  the  statute  of  Eliza- 
beth, it  was  held  that  the  owner 
was  bound  to  permit  the  use  of 
the  crane  upon  it,  and  could  not 
insist  either  that  the  public 
should  not  use  the  crane  at  all, 
or  should  use  it  only  upon  his 
own  terms,  but  that  he  was  bound 
to  permit  the  use  of  it  upon  rea- 
sonable terms.'  ...  It  can- 
not be  questioned  that  the  reason 
why  a  common  carrier  is  re- 
stricted to  reasonable  rates  is  the 
same  that  causes  the  limitation 
at  common  law  upon  the  rates  to 
be  charged  by  a  wharfinger  li- 
censed under  a  statute.  In  refer- 
ence to  a  railroad  company  it 
may  be  truly  said  that  it  exer- 
cises a  guasi-public  employment. 
While  railroads  are  managed  for 
private  benefit  and  the  profits  re- 
sulting from  their  operation  go 
to  individuals,  yet  they  are 
treated  as  merely  a  public  con- 
venience and  agency  in  the  mat- 


574 


CARRIERS. 


[§■  544. 


such  cases:  that  connecting  carriers  may  advance  to  the  carrier 
from  whom  it  receives  freight  and  collect  of  the  consignee  or 
shipper  the  amount,  with  its  own  freight  charges  added,  on  de- 
livery of  the  goods  to  the  consignee,  provided  always  that  the 


ler  of  state  and  interstate  com- 
mercial intercourse.  It  is  the  pub- 
lic character  attached  to  them 
which,  under  certain  circum- 
stances, authorizes  taxation  for 
their  construction,  as  a  tax  for  a 
private  purpose  is  unconstitu- 
tional; and  it  is  the  like  public 
nature  of  their  functions  which 
enables  them  to  become  the  ob- 
jects of  a  legislative  grant  to  take 
the  property  of  an  individual  for 
their  use,  paying  a  reasonable 
compensation  therefor. 
In  the  case  of  Fitchburg  Ry.  Co. 
V.  Gage  et  al.,  12  Gray,  393,  the 
supreme  court  of  Massachusetts 
held  'that  a  railroad  corporation 
is  not  obliged  as  a  common  car- 
rier to  transport  goods  and  mer- 
chandise for  all  persons  at  the 
same  rates.'  In  speaking  of  the 
common-law  rule  that  court  says: 
'It  requires  equal  justice  to  all. 
But  the  equality  which  is  to  be 
observed  in  relation  to  the  public 
and  to  every  individual  consists 
in  the  restricted  right  to  charges 
in  each  particular  case  of  service 
a  reasonable  compensation  and 
no  more.  If  the  carrier  confines 
himself  to  this,  no  wrong  can  be 
done  and  no  cause  afforded  for 
complaint.'  The  claim  made  in 
this  case  arose  out  of  a  difference 
between  the  freights  upon  plaint- 
iff's ice  and  the  price  charged 
others  upon  the  same  class  of 
freights.  It  was  not  upon  the 
same  material,  but  the  court 
treated  the  case  as  involving  the 
same  principle.  It  based  its  con- 
clusion upon  the  ground  that  the 


plaintiff  did  not  set  out  a  case  of 
excessive  or  unreasonable  charge. 
In  the  last  edition  of  Story  on 
Bailments  we  find  the  rule  of  the 
common  law  thus  stated:  "At 
common  law  a  common  carrier  of 
goods  is  not  under  any  obligation 
to  treat  all  customers  equally. 
He  is  bound  to  accept  and  carry 
for  all  upon  being  paid  a  reason- 
able compensation.  But  the  fact 
that  he  charges  less  for  one  than 
for  another  is  only  evidence  to 
show  that  a  particular  charge 
is  unreasonable,  nothing  more. 
There  is  nothing  in  the  common 
law  to  hinder  a  carrier  from 
carrying  for  favored  individuals 
at  an  unreasonably  low  rate  or 
even  gratis.'  In  support  of  this 
doctrine  the  following  cases  are 
cited:  12  Gray,  393;  2  P.  C.  237; 
4  C.  B.  (N.  S.)  78;  12  C.  B.  (N. 
S.)  74.  While  the  text  is  the  rea- 
sonable deduction  from  remarks 
in  these  cases,  still,  with  the  ex- 
ception of  the  case  reported  in  12 
Gray,  they  were  cases  arising  un- 
der statutes.  Most  of  the  cases 
treat  the  common-law  rule  strictly 
as  between  the  parties,  and 
without  comparison  as  to  the 
charges  against  others,  the  cases 
where  legislative  action  is  being 
construed  and  is  controlling  be- 
ing omitted  as  not  being  in  point. 
The  cases  stating  the  common- 
law  rule  are  simply  that  the 
charge  must  be  reasonable.  Thus 
far  there  cannot  be  any  reason- 
able difference  between  fair 
minds.  In  the  next  place,  the 
right  to  have  the  service  of  the 


§    544.]  COMPENSATION  AND  LIEN  OF  CARRIER.  575 

charges  be  reasonable.  This  privilege  seems  to  be  based  upon  an- 
other theory,  and  it  has  been  held  "that  a  common  carrier 
through  whose  hands  goods  are  shipped  is  the  agent  of  the 
owner,  and  has  implied  authority  to  advance  charges  on  the 
goods  and  collect  them  again  from  the  next  carrier  to  whom  they 
are  delivered. ' '  ^'^  And  Avhere  one  purchased  property  in  New 
York,  it  being  agreed  by  the  seller  that  it  should  be  delivered 
in  St.  Louis  for  a  certain  sum  of  money,  and  it  was  sent  by  the 
route  pointed  out  by  the  buyer  over  several  roads  forming  one 
line,  terminating  at  St.  Louis,  the  last  carrier  paying  the  freight 
and  charges  of  all  preceding  carriers,  and  demanding  of  the 
purchaser  the  amount  they  had  paid  with  their  own  freight 
added,  all  of  which  amounted  to  a  much  larger  sum  than  that 
agreed  upon  by  the  seller,  it  was  held  that  the  railroad  company 
was  entitled  to  recover  the  amount  demanded,^^  But  while  the 
connecting  carrier  may  pay  the  charges  and  freight  upon  the 
goods  received  from  the  preceding  carrier,  and  collect,  as  we 
have  seen,  from  the  consignee  or  the  owner,  he  is  not  obliged  to  do 
SO;  he  may  receive  the  goods  as  the  agent  of  the  carrier  who  de- 
livered the  goods  to  him,  and  collect  the  amount  for  him  of  the 
consignee.^^ 

common   carrier   at   a   reasonable  rier  has  advanced  the  charges  of 

rate  is   common.     Upon   a  tender  an  antecedent  carrier  who  trans- 

of  a  reasonable  conpensation,  un-  ported  the  goods  under  an   inde- 

less  there  is  a  reasonable  ground  pendent  contract,  he  becomes  sub- 

for  his  refusal,  in  case  of  refusal  rogated  to  the  rights  of  the  latter, 

he    will    be    liable    to    an    action.  and   may   recover   such   advances 

Under     such     circumstances     he  although  he  fails  to  perform  his 

must  receive  and  carry  all  goods  own  contract;    and   the  fact  that 

offered  for  transportation  by  any  his  bill  of  lading  is  for  transporta- 

person  whatever  upon  receiving  a  tion  and  delivery  upon  payment  of 

suitable  hire."  freights  and  charges  does  not  de- 

17  Armstrong  v.  Chicago,  etc.  Ry.  prive  him  of  such   right."   West- 
Co.,  62  Mo.  App.  639.  ern  Transp.  Co.  v.  Hoyt,  69  N.  Y. 

18  Wells  V.  Thomas,   27  Mo.  17,  230,  25  Am.  Rep.  175. 

72  Am.  Dec.  228;   Naugatuck  Ry.  is  In    Orgeon    Short    Line,    etc. 

Co.   V.    Beardsley   Scythe   Co.,    33  Co.   v.   Northern   Pac.   R.   Co.,   51 

Conn.  218.     "A  connecting  carrier  Fed.   465.   it  was  held:      "In  the 

has  authority  to  advance  charges  absence  of  any  regulation  by  law 

and  freight  and  collect  the  same  or  custom,  a  railway  company  re- 

upon  delivery  of  the  goods."    Bis-  ceiving  freight  from  a  connecting 

sell   V.   Pierce,   16    111.   408.     And  line  is  not  required  to  advance  or 

governs    even    though    goods    are  assume    payment   of   the    charges 

damaged.      Ibid.     Where   a   "car-  due     thereon     for    transportation 


576  CARRIERS.  [§    5-lo. 

§  545.  Who  is  liable  to  the  carrier  for  the  freight. — The  con- 
signee is  presumed  to  be  the  owner  of  the  goods  and  so  may  be 
said  to  be  prima  facie  liable  for  the  freight  charges.  But  this  is 
merely  a  presumption  that  may  be  overcome  by  proof.  If  the 
consignee,  however,  accepts  the  goods  from  the  carrier,  he  be- 
comes liable  for  the  payment  of  the  freight,  and  the  carrier  can 
collect  from  him  the  amount  together  with  other  charges  that 
follow  the  goods.-"  Notwithstanding  the  presumption  that  the 
consignee  is  the  owner  of  the  goods,  the  carrier  may  hold  the 
shipper  for  the  freight  if  he  chooses  to  do  so,  even  if  the  shipper 
does  not  own  the  goods  and  the  carrier  has  waived  his  lien.  It 
was  the  shipper  who  procured  the  carrier  to  do  the  service,  and 
impliedly  he  assumed  the  payment  of  the  freight;  and  it  has 
been  held  that  he  is  liable  for  the  freight,  and  is  not  the  less 
liable  because  the  consignee  is  also  liable.-^ 

§  546.  Where  the  freight  is  only  carried  a  part  of  the  dis- 
tance contracted  for — Pro  rata  itineris. — It  will  be  remembered 
that  goods  are  placed  in  the  custody  and  control  of  the  carrier 
only  for  the  purpose  of  being  transported  as  contracted  for  at 
the  time.  The  owner's  right  to  the  goods  is  always  paramount 
to  that  of  the  carrier;  he  may  take  them  from  the  possession  of 
the  carrier  at  any  time,  or  at  any  place  while  in  transit  before 
they  reach  their  destination,  but  in  such  case  if  the  carrier  has 
commenced  the  transportation  and  is  ready  and  able  to  continue 
carrying  the  goods,  and  to  deliver  them  at  their  destination,  he 
is  entitled  to  compensation  for  the  full  performance  of  the  con- 
tract.^-    This  is  upon  the  theory  that  the  carrier  has  a  lien  upon 

from   the   point   of   origin   to   the  ward  v.  Middleton,  3  McCord    (S. 

point    of   connection."      Baltimore  C),    121;     Gilson    v.    Madden,    1 

&  Ohio  Ry.  Co.  v.  Express  Co.,  22  Lans.  (N.  Y.)  172;  Grant  v.  Wood, 

Fed.  32.     In  Travis  v.  Thompson,  21  N.  J.  L.  292,  47  Am.  Dec.  162; 

37  Barb.  236,  it  was  held:   A  car-  Blanchard   v.    Page,    74    Mass.    (8 

rier  taking  goods  from  a  previous  Gray),  281;  Great  Western  Transp. 

carrier  is  not  obliged  to  pay  his  Co.   v.   Bagg,   15   Q.   B.   Div.   626; 

predecessor's  charges,  but  may  be  Story  on  Bailm.  589;  Holt  v.  Wes- 

regarded  as  the  agent  of  his  pre-  cott,    43   Me.    445;    Minor   v.   Nor- 

decessor     to     collect     his     lawful  wich,   etc.   Ry.   Co.,   32   Conn.   91; 

charges.  Thomas  v.  Snyder,  39  Pa.  St.  317; 

20  Northern     German    Lloyd     v.  Hutch,  on  Carriers,  451. 

Heyle,  44  Fed.  100;  Gates  V.  Ryan,  22  The   Gazelle,    128    U.    S.    474; 

37  Fed.  154.  Braithwaite  v.  Powers,  1  N.  Dak. 

2iWooster  v.  Tarr,  90  Mass.    (8  455,  48  N.  W.  354, 
Allen),  270,  85  Am.  Dec.  162;  Hay- 


§    547.]  COMPENSATION  AND  LIEN  OP  CABRIER.  577 

the  goods  for  the  performance  of  the  contract  for  transportation 
and  so  has  the  right  to  possession  of  them  for  a  reasonable  time 
and  until  the  contract  is  performed.  The  owner  may  waive  his 
contract  for  further  transportation,  but  in  order  to  discharge  the 
lien  and  deprive  the  carrier  of  the  right  of  possession  by  reason 
of  his  services  and  contract  for  further  services  the  shipper  must 
pay  the  freight  as  stipulated. 

On  the  other  hand,  the  carrier  may  find  it  impossible  to  carry 
the  freight  to  its  destination  because  of  some  disaster.  If  the 
goods  are  destroyed  by  the  act  of  God  or  the  public  enemy  while 
being  transported  or  before  delivery,  the  carrier  is  not  entitled 
to  payment  of  the  freight.  But  where  goods  are  not  destroyed 
and  the  carrier  is  unable  to  proceed  he  may  reship  by  some  other 
carrier.  If,  in  such  case,  the  orginal  carrier  is  compelled  to  pay 
a  larger  amount  for  the  continued  transportation  than  the 
original  contract  stipulated  for  the  entire  shipment,  the  shipper 
or  owner  would  be  liable  for  the  amount  that  is  contracted  to  be 
paid,  for  it  would  be  held  that  the  original  carrier  was  the  agent 
of  the  shipper  with  authority  to  make  the  contract,  and  the 
owner  or  consignee  would  be  compelled  to  answer  to  this  con- 
tract; but  he  would,  no  doubt,  have  redress  from  the  original 
carrier  for  the  difference.  In  such  case  the  original  carrier  would 
not  be  entitled  to  compensation  for  carrying  the  goods  to  the 
place  of  disaster.  But  on  the  other  hand,  if  the  amount  con- 
tracted to  be  paid  the  carrier,  who  received  the  freight  by  con- 
tract from  the  original  carrier  at  the  place  of  disaster,  was  a  less 
amount  than  that  to  be  paid  to  the  former  carrier,  in  such  case 
the  owner,  or  consignee,  or  shipper  would  be  liable  to  pay  the  dif- 
ference to  the  original  carrier.  But  suppose  it  to  be  a  case  where 
the  owner  or  consignee  desired  to  take  possession  of  his  goods  at 
the  place  of  disaster,  believing,  for  example,  that  he  could  ship 
them  to  their  destination  to  a  better  advantage,  or  that  he  could 
sell  them  in  the  market  at  that  place  to  as  good  an  advantage  as 
at  the  destination,  or  for  any  other  reason  should  desire  to  re- 
lieve the  carrier;  in  such  case  the  carrier  would  be  entitled  to  a 
pro  rata  compensation,  that  is,  to  such  a  part  of  the  compensa- 
tion as  had  been  fairly  earned.  This  is  usually  termed  pro  rata 
itineris. 

§  547.  Where  goods  shipped  against  the  will  of  the  owner,  as 
by  one  not  having  the  right  to  ship. — The  owner  of  the  goods 
cannot  wrongfully  be  deprived  of  them  or  of  their  possession; 
37 


578  CARRIERS.  [§'  548. 

and  so  if  goods  are  stolen  or  have  been  shipped  by  one  who  had 
no  authority  to  ship  them,  in  such  case  the  owner  could  recover 
his  goods  from  the  carrier,  and  the  carrier  would  not  be  entitled 
to  compensation  for  their  shipment,  and  should  the  carrier  re- 
fuse upon  demand  to  deliver  the  property  to  the  true  owner  he 
would  be  liable  in  an  action  for  conversion.^^ 

As  TO  Discrimination. 

§  548.  Law  forbidding,  applies  to  all  branches  of  carrier's 
business. — The  law  forbidding  discrimination  applies  to  all 
branches  of  the  carrier's  business;  this  is  now  generally  regu- 
lated by  statutes  throughout  all  the  states  and  in  the  United 
States.  The  act  of  congress  regulating  this  is  known  as  the 
Interstate  Commerce  Act.  The  statutes  of  the  states,  as  a  gen- 
eral rule,  but  re-enact  the  established  rules  of  the  common  law 
upon  the  subject. 

Great  stress  is  laid  upon  the  fact  that  common  carriers  are 
to  a  great  extent  servants  of  the  public;  their  franchises  are 
granted  by  the  people,  and  it  is  expected  in  return  that  there 
will  be  no  favors  shown  to  any  class  or  any  branch  of  trade. 
As  has  been  said,  "railroads  are  public  instrumentalities,  and 
the  public  is  concerned  in  the  manner  in  which  their  affairs 
are  managed,  as  well  as  the  service  they  render.  As  common 
carriers  they  are  expected  to  supply  suitable  and  adequate  ac- 
commodations for  the  business  on  their  lines,  and  to  so  perform 
their  service  as  not  to  afford  preference  to  some  nor  cause  prej- 
udice to  others.  They  are  expected  to  do  their  business 
through  their  own  corporate  agencies,  and  not  to  delegate  their 
duties  to  independent  and  often  irresponsible  parties  acting  as 
middle-men  between  the  carriers  and  the  public.  For  continu- 
ous carriage  by  connecting  routes  all  reasonable  facilities  are 
expected  to  be  afforded.  In  short,  railroads,  as  the  necessary 
highways  of  the  country,  are  expected  to  keep  in  view  the  pur- 
pose for  which  their  franchises  were  granted,  and,  while  guard- 
ing their  revenues  with  fidelity  to  their  corporate  interests  to 

23  A   carrier   acquires   no    right  paid  against  the  claim  of  the  true 

by   virtue   of   its    employment   as  owner.     Savannah,  etc.  R.  Co.  v. 

such  to  hold  goods  delivered  to  it  Talbert,  123  Ga.  378,  51  S.  E.  401. 

by  a  wrong  doer  to  whom  they  do  See  post,  §  555  and  notes, 
not  belong,  until  the  charges  are 


§    550.]  COMPENSATION  AND  LIEN  OF  CARRIER.  579 

make  the  public  service  their  constant  aim,  and  to  so  manage 
their  affairs  that  the  service  shall  be  impartial  and  reason- 
able. "2* 

The  definition  of  a  common  carrier  usually  concurred  in  ex- 
presses the  legal  duty  of  the  carrier  in  this  respect :  ' '  One  who 
holds  himself  out  as  ready  and  willing  to  carry  the  goods  of  all 
who  may  apply,"  etc.  It  implies  that  all  will  be  treated  alike, 
and  that  there  shall  be  no  discrimination. 

§  549.  Relates  to  facilities  for  shipment. — The  require- 
ments of  the  law  have  reference  to  all  the  facilities  incumbent 
upon  the  carrier  to  furnish  —  its  stational  facilities,  dock  priv- 
ileges, the  use  of  warehouses  for  the  delivery  and  receipt  of  the 
goods,  the  use  of  stock  pens  for  the  shipment  of  animals,  the 
furnishing  of  cars  or  boats  for  the  transportation  of  the  goods, 
and  the  motive  power  for  drawing  the  trains  as  w^ell  as  rates 
for  carriage.  As  the  carrier  is  bound  to  furnish  all  these  facil- 
ities, he  is  legally  bound  to  furnish  them  without  unjust  and 
undue  discrimination. 

"At  common  law,"  says  an  eminent  jurist,  "common  carriers 
were  held  to  be  persons  who  exercised  their  calling  for  the  pub- 
lic good  upon  equal  terms  and  with  the  same  facilities  to  all 
their  customers.  They  could  not  lawfully  exercise  their  calling 
by  granting  advantages  to  one  customer  which  they  denied  to 
another,  but  were  held  to  the  duty  of  serving  all  alike.  Their 
calling  is  one  public  in  its  nature,  and  the  common  law  exacted 
of  them  a  strict  impartialitiy  in  their  dealings  with  the  pub- 
lic. "^^ 

§  550.  The  discri'mination  that  is  forbidden. — As  has  been 

said,  discrimination  does  not  mean  merely  unequal  rate  charges ; 
the  carrier  may  charge  one  customer  a  less  rate  than  is  deter- 
mined to  be  a  reasonable  rate,  and  which  is  charged  to  another 
customer.2^  The  vice  that  is  aimed  at  is  a  partiality  that  will  af- 
fect trade  and  create  and  nourish  monopolies.     As,  for  example, 

2*  Int.    St.    Comm.    Commission  430;  New  England  v.  Railway  Co., 

Rep.  399.  57  Me.  188. 

25  Fitzgerald    v.    Grand    Trunk  26  Schofield   v.    Railway   Co.,   43 

Ry.  Co.,   63  Vt.  169,  13  L.  R.   A.  Ohio  St.   571;    Cleveland,  etc.  Ry. 

70;    Messenger  v.  Pa.  Ry.  Co.,  36  Co.   v.    Clossar,    126    Ind.    348,    25 

N.  J.  L.  407;   Audenreid  v.  Phila-  N.  E.  159  and  cases  cited  in  the 

delphia  Ry.   Co.,   68   Pa.   St.   370;  opinion.      Central    Ga.    R.    Co.    v. 

McDuffie  V.  Railway  Co.,  52  N.  H.  Augusta,  etc.  Co.,  122  Ga.  646,  50 

S   E.  473,  69  L.  R.  A.  119. 


580  CAURIERS,  [§    550. 

where  competition  is  sharp  among  dealers  in  a  certain  commod- 
ity a  partiality  as  to  furnishing  facilities  for  shipment  or  rates 
extended  to  a  certain  dealer  or  company  might  be  sufficient  to 
create  a  monopoly  for  the  favored  dealer  and  drive  all  others 
from  the  trade.  It  is  this  unjust  or  oppressive  partiality  that 
favors  one  at  the  expense  of  others  that  the  law  forbids.  As  said 
by  Judge  Elliott:  "It  is  safe  to  say  that  the  rule  is  that  a  rail- 
road carrier,  so  far  as  concerns  the  receipt  and  transportation 
of  goods,  however  it  may  be  as  to  rates  of  freight,  must,  where 
the  conditions  and  circumstances  are  identical,  treat  all  ship- 
pers alike.  It  cannot  furnish  facilities  to  some  shippers  and 
deny  them  to  others  unless  there  is  a  difference  in  condition  or 
circumstances  such  as  makes  the  discrimination  a  just  one. ' '  ^^ 

In  a  case  in  Pennsylvania  ^^  involving  the  question  of  viola- 
tion of  the  statute  and  constitution  of  the  state,  which  is  but 
a  re-enactment  of  the  common-law  rule,  the  court  say:  "It 
(the  law)  prohibits  only  discrimination  which  is  undue  or  un- 
reasonable, and  the  prohibited  discrimination  is  further  limited 
by  the  consideration  that  it  must  be  'for  a  like  service  from  the 
same  place  upon  like  conditions  and  under  similar  circum- 
stances.' "  It  has  been  said  that  "a  railroad  company  is  an 
improved  highway  and  the  public  are  equally  entitled  to  its 
use;  it  must  provide  equal  accommodations  for  all  upon  the 
same  terms. ' '  ^^ 

And  in  Louisville,  etc.  By.  Co.  v.  Wilson,^''  it  is  said  by  the  su- 
preme court  of  Indiana:  "Railroad  companies  are  granted  char- 
ters and  are  given  the  right  of  eminent  domain  because  when 
the  roads  are  constructed,  though  owned  by  the  corporation, 
they  are  nevertheless  for  public  use,  and  are,  in  a  qualified 
sense,  public  highways.  Everyone  constituting  a  part  of  the 
public  for  whose  use  they  are  constructed  is  entitled  to  an  equal 
and  impartial  participation  in  the  use  of  the  facilities  for  trans- 
portation which  they  afford.  While  power  to  fix  rates  is  con- 
ferred upon  them  by  law,  such  rates  are  always  open  to  inves- 
tigation by  the  courts ;  for  it  is  an  elementary  rule  that  common 

27  Elliott    on    Railroads,    1468;  29  state  v.  Cincinnati,  N.  O.  etc. 

Little  Rock,  etc.  R.  Co.  v.  Oppen-  Ry.  Co.,  47  Ohio  St.  130,  7  L.  R. 

heimer,  etc.   Co.,   64  Ark.   271,   44  A.  319. 

L.  R.  A.  353.  30  Lousiville,  etc.  Ry.  Co.  v.  Wil- 
is Hoover  et  al.  v.  Pa.  Ry.  Co.,  son.  132  Ind.  517,  18  L.  R.  A.  105. 

156  Pa.  St.  220,  22  L.  R.  A.  263. 


§  551.J 


COMPENSATION  AND  LIEN  OF  CARRIER, 


581 


carriers  can  charge  no  more  than  a  reasonable  compensation  for 
the  services  performed.  While  it  is  true  that  there  is  appar- 
ently some  conflict  in  the  authorities,  the  principles  here  an- 
nounced we  think  are  supported  by  the  weight  of  authority."  ^^ 

A  writer  on  railway  law  thus  expresses  the  general  rule: 
''Railways  are  held  to  the  strictest  impartiality  in  the  conduct 
of  their  business,  in  withholding  all  privileges  or  preferences 
from  one  customer  which  are  not  extended  to  all  others."  ^^ 

"The  hinge  of  the  question,"  says  a  learned  judge,  "is  not 
found  in  the  single  fact  of  discrimination,  for  discrimination 
without  partiality  is  inoffensive,  and  partiality  exists  only  in 
cases  where  advantages  are  equal,  and  one  party  is  unduly  fa- 
vored at  the  expense  of  another  who  stands  upon  an  equal  foot- 
ing. ' '  ^^ 

§  551.  Regulation  by  statutes  of  states. — The  states  gen- 
erally have  enacted  statutes  regulating  this  subject  and  impos- 
ing upon  the  railroad  companies  restrictions  in  the  operation 


31  Root  V.  Long  Island  R.  Co., 
114  N.  Y.  300,  4  L.  R.  A.  331;  New 
Eng.  Exp.  Co.  V.  Maine  Cent.  R. 
Co.,  57  Me.  188;  Scofield  v.  Lake 
Shore  &  M.  S.  R.  Co.,  43  Ohio  St. 
€17,  54  Am.  Rep.  846;  Sandford 
V.  Catawissa,  W.  &  E.  R.  Co.,  24 
Pa.  St.  378,  64  Am.  Dec.  676;  Hays 
V.  Pennsylvania  Co.,  12  Fed.  309; 
Attorney-General  v.  Chicago  &  N. 
W.  R.  Co.,  35  Wis.  426;  Samuels 
V.  Louisville  &  N.  R.  Co.,  31  Fed. 
57;  Providence  Coal  Co.  v.  Provi- 
dence &  W.  R.  Co.,  1  Inter.  Com. 
Rep.  363. 

32 1   Wood,   Railway   Laws,    565. 

33  Cleveland,  C.  &  I.  Ry.  Co.  v. 
Closser,  126  Ind.  348,  9  L.  R.  A. 
754,  the  court  in  the  above  case 
citing  English  cases  said  to  sup- 
port this  general  doctrine;  Garton 
V  Bristol  &  E.  R.  Co.,  1  Best  &  S. 
112;  Hozier  v.  Caledonian  R.  Co., 
1  N.  &  McN.  29;  Great  Western 
R.  Co.  V.  Sutton,  L.  R.  4  H.  L.  238; 
Ransome  v.  Eastern  Counties  R. 
Co.,  1  N.  &  McN.  45;  Oxlade  v. 
Northeastern  R.   Co.,  id.  72,  1  C. 


B.  (N.  S.)  454;  Bellsdyke  v.  North 
British  R.  Co.,  2  N.  &  McN.  105. 
The  American  cases  seem  to  flow 
in  the  same  general  channel.  Bay- 
les  V.  Kansas  Pac.  R.  Co.,  13  Colo. 
181,  5  L.  R.  A.  480;  Spofford  v. 
Boston  &  M.  R.  Co.,  128  Mass.  326; 
Fitchburg  R.  Co.  v.  Gage,  12  Gray, 
393;  Johnson  v.  Pensacola,  etc.  R. 
Co.,  16  Fla.  632;  Ragan  v.  Aiken, 
9  Lea,  609,  42  Am.  Rep.  684;  Mc- 
Duffie  V.  Portland  &  R.  Co.,  52  N. 
H.  430,  13  Am.  Rep.  72;  Hersh  v. 
Northern  Cent.  R.  Co.,  74  Pa.  St. 
181;  Christie  v.  Missouri  Pac.  R. 
Co.,  94  Mo.  453,  7  S.  W.  567; 
Chicago  &  A.  R.  Co.  v.  People,  67 
111.  1;  Erie  &  Pac.  Desp.  v.  Cecil, 
112  111.  185;  Root  v.  Long  Island 
R.  Co.,  114  N.  Y.  300,  4  L.  R.  A. 
331;  Stewart  v.  Lehigh  Valley  R. 
Co.,  38  N.  J.  L,  505;  Union  Pac. 
R.  Co.  V.  United  States,  117  U.  S. 
355;  Interstate  Commerce  Com.  v. 
Baltimore  &  O.  R.  Co.,  8  R.  R.  & 
Corp.  L.  J.  343,  3  Inter.  Com.  Rep. 
192. 


582  CAERIEES.  [§    551. 

of  the  several  roads  within  the  state,  touching  the  furnishing 
of  cars,  freight  charges,  passenger  traffic,  running  of  trains, 
taxation  and  numerous  matters  in  relation  to  the  conducting  of 
the  business  of  the  carrier,  but  these  statutes  are  only  local  and 
have  no  binding  force  beyond  the  boundaries  of  the  state. 
They  are  intrastate  laws  and  regulations  and  not  interstate. 
And  while  the  Federal  courts  have  steadily  upheld  the  power 
of  the  several  states  to  enact  these  laws,  and  have  generally  sus- 
tained them ;  they  have  as  generally  held  to  the  strict  and  plain 
distinction  in  the  powers  delegated  to  the  general  government 
in  the  constitution  of  the  United  States  and  those  reserved  to 
the  states. 

It  will  be  interesting  to  notice  some  of  these  cases  as  illus- 
trating not  only  the  power  of  the  states  to  regulate  intrastate 
commerce,  but  the  necessity  of  the  general  government  to  regu- 
late interstate  commerce. 

In  an  early  case  Chief  Justice  Marshall  very  clearly  construed 
the  powers  degelated  to  the  general  government  as  stated  in 
section  3,  art.  VIII  of  the  constitution  of  the  United  States.^* 
In  Gihhons  v.  Ogden,^^  in  delivering  the  opinion  of  the  court 
he  said:  "It  is  not  intended  to  say  that  those  words  compre- 
hended that  commerce,  which  is  completely  internal  which  is 
carried  on  between  man  and  man  in  a  state,  or  between  differ- 
ent parts  of  the  same  state,  and  which  does  not  extend  to  or 
affect  other  states.  .  ,  .  Comprehensive  as  the  word 'among' is 
it  may  very  properly  be  restricted  to  that  commerce  which  con- 
cerns more  states  than  one.  .  .  .  The  genius  and  character  of 
the  whole  government  seems  to  be,  that  its  action  is  to  be  applied 
to  all  the  external  concerns  of  the  nation,  and  to  those  internal 
concerns  which  affect  the  states  generally;  but  not  to  those 
which  are  completely  within  a  particular  state,  which  do  not 
affect  other  states,  and  with  which  it  is  not  necessary  to  inter- 
fere, for  the  purpose  of  executing  some  of  the  general  powers 
of  the  government.  The  complete  internal  commerce  of  a  state, 
then,  may  be  considered  as  reserved  for  the  state  itself."  This 
case  has  been  generally  followed.  In  Wabash  By.  Co.  v.  Illi- 
nois ^^  the  question  was  again  before  the  court  and  it  "was  said 

-4  Sec.  3j  Act  VIII,  U.  S.  Const.:  nations  and  among  the  several 
"Congress  shall  have  power  to  States  and  with  the  Indian  tribes." 
regulate    commerce    with    foreign  35  9  Wheat.  1,  194. 

30 118  U.  S.  564. 


§    551.]  COMPENSATION  AND  LIEN  OP  CARRIER.  583 

by  the  court:  "It  has  often  been  held  in  this  court,  and  there 
can  be  no  doubt  about  it,  that  there  is  a  commerce  wholly  with- 
in the  state  which  is  not  subject  to  the  constitutional  provision, 
and  the  distinction  between  commerce  among  the  states  and  the 
other  class  of  commerce  between  the  citizens  of  a  single  state, 
and  conducted  within  its  limits  exclusively,  is  one  which  has 
been  fully  recognized  in  this  court,  although  it  may  not  be  al- 
ways easy,  when  the  lines  of  those  classes  approach  each  other, 
to  distinguish  between  the  one  and  the  other."  And  the  courts 
have  gone  further  and  held  that  where  a  railroad  company  is 
doing  an  interstate  business,  and  at  the  same  time  an  intrastate 
business,  as  to  the  latter  it  will  be  entirely  governed  by  the 
laws  of  the  state  and  the  general  government  cannot  interfere. 
The  question  has  arisen  where  the  state  has  imposed  a  license 
for  carrying  goods  from  place  to  place  in  the  state ;  ^^  in  up- 
holding a  statute  imposing  a  tax  on  each  sleeping  and  palace 
car  company  carrying  passengers  from  place  to  place  within 
the  state,^®  in  holding  valid  statutes  fixing  rates  for  intrastate 
commerce,^^  in  eases  involving  statutes  requiring  the  company 
to  stop  its  trains  at  certain  stations,*"  and  in  a  long  line  of 
cases  involving  statutes  in  several  of  the  states  requiring  car- 
riers to  provide  separate  accommodations  for  the  white  and 
colored  races.*^ 

But  while  these  state  statutes  were  fully  recognized  by  the 
courts  as  of  binding  effect  within  the  state  enacting  them  they 
were  of  no  force  as  regulating  commerce  among  the  states. 
The  remedies  they  gave  for  the  regulation  of  intrastate  com- 
merce were  not  sufficient  to  regulate  interstate  business  and  the 
result  was  that  out  of  the  intent  to  regulate  often  came  con- 
fusion; for  with  the  establishing  and  operating  of  great  trunk 

37  0sborn  v.  Florida,  164  U.  S.  Co.  v.  Illinois,  163  U.  S.  142;  C.  C. 
650.  C.  &  St.  L.  R.  Co.  V.  Illinois,  177 

38  Pullman  Co.  v.  Adams,  189  TJ.      U.  S.  514. 

S.  420;  Penn.  R.  R.  Co.  v.  Knight,  4i  One  of  the   earlier   cases   in- 

192  U.  S.  21.  volving   the   right   of   a   state   to 

39  Louisville  &  N.  R.  Co.  v.  require  separate  coach  laws  was 
Kentucky,  183  U.  S.  503;  L.  &  N.  Hall  v.  McCain,  95  U.  S.  485.  This 
R  Co.  V.  Eubank,  184  U.  S.  27;  C.  case  has  been  followed  by  Louis- 
B.  &  S.  V.  Iowa,  94  U.  S.  155.  ville  R.  Co.  v.  Mississippi,  133  U. 

*oGladson  v.  Minnesota,  166  U.  S.  587;  Plossy  v.  Ferguson,  163 
S.  430;  L.  &  N.  R.  Co.  v.  Ken-  U.  S.  537;  Chesapeake  &  Ohio  Ry. 
tucky,  161  U.  S.  667;  111.  Cent.  R.      Co.  v.  Kentucky,  179  U.  S.  388. 


58-1  CARRIERS.  [§    552. 

lines  reaching  across  many  states,  all  under  one  management 
came  a  disregard  of  obligations,  that  justly  rested  upon  the 
carriers,  because  there  was  no  general  law  of  congress  defining 
the  duties  of  common  carriers  in  interstate  commerce  business 
and  no  court  to  which  one  could  appeal  when  an  injustice  had 
been  suffered. 

So  great  was  the  need  of  correcting  the  evils  in  both  freight 
and  passenger  traffic  that  the  congress  of  the  United  States 
acting  under  its  constitutional  authority  "to  regulate  commerce 
with  foreign  nations  and  among  the  several  states,  and  with  the 
Indian  tribes;"  passed  "an  act  to  regulate  commerce"  which 
was  approved  February  4th,  1887,  and  is  commonly  known  as 
the  interstate  commerce  act. 

§  552.  The  interstate  commerce  act. — This  act  was  aimed  at 
the  regulation  of  freight  and  passenger  rates  on  interstate  lines, 
and  the  general  business  of  the  carrier  so  far  as  regulating  dis- 
criminating charges,  rebates  and  the  unjust  favoring  of  certain 
customers  or  corporations,  and  the  overcharging  of  others. 

The  general  oversight  and  enforcing  of  the  law  was  placed 
under  the  supervision  of  a  commission,  who  were  given  certain 
powers  and  jurisdiction  to  act.  This  law  after  being  in  opera- 
tion for  twenty  years  was  found  inadequate  and  was  amended 
by  an  act  enlarging  the  powers  of  the  interstate  commerce  com- 
mission approved  June  29,  1906.^^ 

■*2  Part  1,  Statutes  of  the  United  erty  wholly  by  railroad  (or  partly 
States,  first  session  59th  Congress,  by  railroad  and  partly  by  water 
page  584,  etc.  By  the  first  section  when  both  are  used  under  a  com- 
of  the  act  as  amended  it  is  pro-  mon  control,  management  or  ar- 
rided  that  the  act  shall  apply  "to  rangement  for  a  continuous  ear- 
any  corporation  or  any  person  or  riage  or  shipment)  from  one  state 
persons  engaged  in  the  trans-  or  territory  of  the  United  States, 
portation  of  oil  or  other  com-  cr  the  District  of  Columbia,  to  any 
modity,  except  water  and  except  other  state  or  territory  of  the 
natural  or  artificial  gas,  by  means  United  States  or  the  District  of 
of  pipe  lines,  or  partly  by  pipe  Columbia  or  from  one  place  in  a 
lines  and  partly  by  railroad,  or  territory  to  another  place  in  the 
partly  by  pipe  lines  and  partly  by  same  territory,  or  from  any  place 
water,  who  shall  be  considered  :inrl  in  the  United  States  to  an  ad- 
held  to  be  common  carriers  within  jacent  foreign  country,  or  from 
the  meaning  and  purpose  of  this  any  place  in  the  United  States 
act,  and  to  any  common  carrier  through  a  foreign  country  to  any 
or  carriers  engaged  in  the  trans-  other  place  in  the  United  States, 
portation   of   passengers   or   prop-  and  also  to  the  transportation  in 


§  553.]  compensation  and  lien  of  carrier.  585 

The  Lien  of  the  Carrier. 

§  553.  Similar  to  the  lien  of  the  bailee — Special,  not  gen- 
eral.— Generally  the  same  principles  that  have  already  been 
discussed  as  applying^  to  the  lien  of  bailees  apply  to  the  lieu 
of  the  carrier.     The  common  carrier  has  a  specific  lien  upon 


like  manner  of  property  shipped 
from  any  place  in  United  States 
to  a  foreign  country  and  carried 
from  such  place  to  a  port  of  trans- 
shipment, or  shipped  from  a  for- 
eign country  to  any  place  in  the 
United  States  and  carried  to  such 
place  from  a  port  of  entry  either 
in  the  United  States  or  an  ad- 
jacent foreign  country;  Provided, 
however,  that  the  provisions  of 
this  act  shall  not  apply  to  the 
transportation  of  passengers  or 
property,  or  to  receiving,  deliver- 
ing, storage,  or  handling  of  prop- 
erty wholly  Avithin  one  state,  and 
not  shipped  to  or  from  a  foreign 
country  from  or  to  any  state  or 
territory  as  aforesaid." 

"The  term  common  carrier  as 
used  in  this  act  shall  include  ex- 
press companies  and  sleeping  car 
companies.  The  term  railroad  as 
used  in  this  act,  shall  include  all 
bridges  and  ferries  used  or 
operated  in  connection  with  any 
railroad,  and  also  all  the  road  in 
use  by  any  corporation  operating 
a  railroad,  whether  owned  and 
operated  under  a  contract  agree- 
ment or  lease,  and  shall  also  in- 
clude all  switches,  spurs,  tracks, 
and  terminal  facilities  of  every 
kind  used  or  necessary  in  the 
transportation  of  the  persons  or 
property  designated  herein,  and 
also  all  freight  depots,  yards  and 
grounds  used  or  necessary  in  the 
transportation  or  delivery  of  any 
of  said  property;  and  the  term 
transportation   shall   include   cars 


and  other  vehicles  and  all  instru- 
mentalities and  facilities  of  ship- 
ment or  carriage,  irrespective  of 
ownership  or  of  any  contract,  ex- 
press or  implied,  for  the  use 
thereof  and  all  services  in  con- 
nection with  the  receipts,  de- 
livery, elevation,  and  transfer  in 
transit,  ventilation,  refrigeration 
or  icing,  storage,  and  handling  of 
property  transported  and  it  shall 
be  the  duty  of  every  carrier  sub- 
ject to  the  provisions  of  this  act 
to  provide  and  furnish  such  trans- 
portation upon  reasonable  request 
therefor,  and  to  establish  through 
routes  and  just  and  reasonable 
rates   applicable   thereto." 

"All  charges  made  for  any  serv- 
ices rendered  or  to  be  rendered 
in  the  transportation  of  passen- 
gers or  property  as  aforesaid,  or 
in  connection  therewith,  shall  be 
just  and  reasonable;  and  every 
unjust  and  unreasonable  charge 
for  such  service  or  any  part 
thereof  is  prohibited  and  declared 
to  be  unlawful." 

The  act  then  prohibits  common 
carriers  subject  to  the  provisions 
of  the  act,  from  issuing  free  passes 
or  free  transportation  except  in 
certain  cases  specified,  and  fixes  the 
penalty  for  doing  so;  from  trans- 
porting except  of  certain  kinds, 
products  in  which  the  railroad  is 
interested;  provides  that  any  com- 
mon carrier  upon  application  of 
certain  lateral  or  branch  lines  or 
shippers,  shall  construct,  main- 
tain and  operate  upon  reasonable 


586 


CARRIERS. 


[§'  553. 


the  goods  transported  as  security  for  his  compensation  and 
charges.*^  The  specific  lien  is  implied,  but  a  general  lien  can 
only  exist  by  special  contract,  and  such  special  contract  will  be 


terms  switch  connections  with  such 
lateral  lines  or  branch  lines  of 
railroad,  where  such  connection 
is  reasonably  practicable  and  can 
be  put  in  with  safety  and  will 
furnish  sufficient  business  to 
justify  the  construction  and  main- 
tenance of  the  same;  and  shall 
furnish  cars  for  the  movement  of 
such  traffic  to  the  best  of  its  ability 
without  discrimination  in  favor 
of  ar  against  any  such  shipper, 
providing  for  proceedings  for  fail- 
ure to  perform  this  duty. 

Provides  that  the  common  car- 
rier shall  print  and  keep  open  to 
the  public  inspection  schedules 
showing  all  the  rates  of  fares, 
and  charges  for  transportation 
between  different  points  on  its 
own  route  and  between  different 
points  on  its  own  route  and  points 
on  the  route  of  any  other  carrier 
by  railroad,  by  pipe  line,  or  by 
water  where  a  through  route  and 
joint  rate  have  been  established. 
And  if  no  such  rate  has  been  es- 
tablished that  the  several  carriers 
in  such  through  rate  shall  keep 
open  for  public  inspection  such 
schedules  showing  the  separately 
established  rates,  those  schedules 
to  show  also  all  terminal  charges, 
icing  charges  and  all  other  charges 
in  connecting  with  such  trans- 
portation; which  schedules  shall 
be  posted  in  two  public  and  con- 
spicuous places  in  every  depot, 
station  or  office  of  such  carriers. 

The  act  also  provides  that  there 
shall  be  no  changes  made  in  the 
rates  except  after  thirty  days'  no- 
tice to  the  commissioner  and  to 
the  public  published  as  provided. 
There  are  other  important  pro- 


visions regulating  the  duties  of 
the  common  carrier  and  fixing 
penalties  for  their  violations. 

The  whole  matter  of  the  regu- 
lation of  freight  and  passenger 
carriers  is  placed  in  the  hands 
of  the  commission  provided  for  by 
the  act,  known  as  the  Interstate 
Commerce  Commission,  this  com- 
mission is  given  authority  to 
investigate  all  complaints  that 
may  be  made  whenever  such  act 
is  violated,  to  have  general  su- 
pervision of  carriers  and  to  report 
upon  the  same;  and  the  report 
of  the  commission  found  and  pub- 
lished shall  be  prima  facie  proof 
of  the  facts  it  contains  and  con- 
clusion arrived  at,  and  will  be  so 
taken  in  any  court  of  the  United 
States  in  proceedings  with  refer- 
ence to  said  complaint. 

It  also  provides  that  when  the 
carrier  against  whom  the  com- 
mission has  found  in  its  report, 
fails  to  obey  the  judgment  pro- 
nounced, the  commission  or  any 
person  interested  may  proceed  in 
any  of  tJie  circuit  courts  of  the 
United  States  by  a  summary  pro- 
ceeding provided  for  in  the  act 
to  compel  compliance  with  the 
finding  of  the  commission.  This 
act  should  be  read  in  connection 
with  the  act  of  1887  and  the  El- 
kins'  act  approved  Feb.  19,  1903. 

43  Gracie  v.  Palmer,  8  Wheat. 
(U.  S.)  635;  Dyer  v.  Grand 
Trunk  Ry.  Co.,  42  Vt.  441,  1  Am. 
Rep.  350;  Barker  v.  Havens,  17 
Johns.  (N.  Y.)  236,  8  Am.  Rep. 
393;  Hall  t.  Diamond,  63  N.  H. 
465;  Coal,  etc.  Co.  v.  Chicago  etc. 
Co.,  116  Mo.  App.  214. 


§    554.]  COMPENSATION  AND  LIEN  OF  CARRIER.  587 

strictly  construed."  The  lien  gives  the  carrier  the  right  to  re- 
tain the  possession  of  the  goods  until  the  charges  are  paid,  and 
so  long  as  the  possession  is  retained  by  the  carrier  by  reason  of 
the  lien,  the  consignee,  or  owner,  cannot  deprive  him  of  it. 
Statutes  in  the  different  states  have  provided  for  a  foreclosure 
and  a  sale  to  satisfy  the  lien.  The  carrier  is  not  authorized  by 
the  common  law  to  sell  the  property  either  at  public  or  private 
sale  to  satisfy  the  lien;  he  can  only  retain  the  same  in  his  pos- 
session until  the  amount  is  paid.  Nor  do  the  statutes  passed 
by  the  several  states  authorize  foreclosure  except  by  public  sale, 
which  must  be  not  only  public  but  entirely  fair  and  open,  after 
proper  notice  and  at  a  proper  place. 

§  554.  When  does  the  lien  attach? — While  there  seems  not 
to  be  entire  harmony  among  the  authorities  as  to  this  subject, 
nevertheless  as  to  the  principles  involved  there  can  be  but  little 
if  any  dispute.  The  goods  are  in  transit  from  the  time  they 
are  received  by  the  carrier  for  immediate  shipment;  from  that 
moment  the  extraordinary  liability  of  the  common  carrier  com- 
mences, and  the  reason  for  giving  to  the  common  carrier  the 
benefit  of  a  lien  to  secure  the  payment  for  his  services  is,  among 
other  things,  because  he  has  incurred  the  common  carrier's  lia- 
bility— ^has  become  an  insurer  of  the  property  to  be  transported. 
So  the  lien  given  the  carrier  as  a  reward  for  the  extraordinary 
liability  should  be  contemporaneous  with  the  attaching  of  the 
responsibility.  The  amount  due  the  carrier  may  be  large  or 
small,  depending  upon  the  amount  of  service  performed,  but 
the  lien  will  attach  at  the  same  time  the  goods  are  accepted  for 
immediate  shipment.  Lord  Campbell,  in  Taylor  v.  TindaZl,'^^ 
expresses  the  opinion  contended  for  in  the  following  language : 
"It  is  argued  that  there  can  be  no  lien  on  the  goods  for  freight 
not  yet  earned  or  due ;  but  when  the  goods  were  laden  to  be  car- 
ried on  a  particular  voyage  there  was  a  contract  that  the  master 

44  Pennsylvania  R.  Co.  v.  Oil  upon  payment  of  freight,  neces- 
Works,  126  ira.  St.  485;  Bacharacti  sary  expenses  of  unloading,  and 
V.  Chester  Freight  L.ine,  33  Pa.  indemnifying  the  party  for  any 
St.  414.  differences   between   the   value   of 

45  4  El.  &  Bl.  219.  In  Bartlett  the  goods  at  the  port  of  lading  and 
V.  Carnley,  6  Duer  (N.  Y.  Super.  what  the  master  or  ship-owner 
Ct.),  194,  it  was  held  "that  the  may  be  obliged  to  pay  at  the  port 
freighter  who  removes  goods  once  of  destination  under  such  bill  of 
shipped  with  a  bill  of  lading  de-  lading." 

livered    can    only    neclaim    them 


588  CARRIERS.  [§•  555. 

should  cany  them  in  the  ship  upon  that  voyage  for  freight; 
and  the  general  rule  is  that  a  contract  once  made  cannot  be  dis- 
solved except  with  the  consent  of  both  the  contracting  parties. 
By  the  usage  of  trade,  the  merchant,  if  he  redemands  the  goods 
in  a  reasonable  time  before  the  ship  sails,  is  entitled  to  have 
them  delivered  back  to  him  on  paying  the  freight  that  might  be- 
come due  for  the  carriage  of  them,  and  on  indemnifying  the 
master  against  the  consequences  of  any  bills  of  lading  signed 
for  them;  but  these  are  conditions  to  be  performed  before  the 
original  contract  can  be  affected  by  the  demand  of  the  goods. 
It  would  be  most  unjust  to  the  owners  and  master  of  the  ship  if 
we  were  to  hold  that  upon  a  simple  demand  at  any  time  the 
goods  must  be  delivered  back  in  the  port  outfit." 

Some  of  the  cases  have  held  that  the  lien  attaches  as  soon  as 
the  goods  are  placed  on  board  the  ship;  others  that  it  does  not 
attach  until  the  voyage  is  commenced.  But  these  opinions  were 
rested  upon  the  ground  that  no  part  is  due  before  the  com- 
mencement of  the  voyage.  And  so  in  the  earlier  days,  when  the 
carrier  did  not  hold  out  to  the  public  that  he  would  receive  and 
care  for  the  freight  before  the  hour  for  loading,  the  rule  might 
have  been  different;  but  the  same  principle  ever  existed  that 
when  the  freight  is  received,  and  is  in  the  control  of  the  carrier 
for  immediate  sJiipment,  the  liability  attaches  and  the  lien  ex- 
ists. "Whether  it  is  received  by  the  carrier  in  his  warehouse  for 
the  purpose  of  immediate  shipment,  or  whether  it  is  received  on 
board  his  ship,  it  can  make  no  difference.  It  must  be  clear  that 
as  soon  as  the  liability  attaches  to  the  carrier,  his  lien  attaches  to 
the  goods.*® 

§  555.  When  shipment  made  by  one  without  authority. — The 
carrier  must  obtain  possession  of  the  goods  from  the  owner,  or 
by  his  consent,  either  express  or  implied,  and  if  the  possession 
is  not  thus  obtained,  but  is  wrongful  or  tortious,  even  though 
innocent  on  the  part  of  the  carrier  and  without  fault  or  negli- 
gence of  the  owner,  the  carrier  will  not  have  the  right  to  corn- 
compensation  for  the  carrying  of  the  goods,  and  therefore  can- 
not have  a  lien  upon  them  for  such  compensation.*'^     "There  is 

46  Bailey  v.  Damon,  3  Gray  the  defendants  it  is  contended  that 
(Mass.),   92.  a    common    carrier    who    receives 

47  In  Fitch  &  Gilbert  v.  New-  goods  for  carriage  and  transports 
herry  &  Goodell,  1  Doug.  (Mich.)  them  may  detain  them  by  virtue 
1,  the  court  say:   "On  the  part  of      of    his     lien,     for    freight,    even 


§  555. 


COMPENSxVTlON  AND  LIEN  OF  CARRIER. 


58^ 


no  case  to  be  found,  or  any  reason  or  analogy  anywhere  sug- 
gested in  the  books,  which  would  go  to  show  that  the  real  owner 
was  concluded  by  a  bill  of  lading  not  given  by  himself,  but  by 
some  third  person,  erroneously  or  fraudulently.     If  the  owner 


against  the  owner,  in  case  the 
freight  has  been  earned  without 
fraud  or  collusion  on  his  part; 
that,  if  goods  be  stolen  or  other- 
wise tortiously  obtained  from  the 
legal  owner,  at  New  York  or  else- 
where, and  carried  by  a  trans- 
portation line  from  thence  to  De- 
troit, without  a  knowledge  of  the 
theft  on  the  part  of  the  carrier, 
he  would  be  entitled  to  a  lien  for 
freight,  even  against  the  owner. 
This  doctrine  is  sought  to  be 
maintained  by  the  defendants' 
counsel  on  several  grounds:  1.  He 
insists  that  a  common  carrier  is 
bound  to  receive  goods  which  are 
offered  for  transportation,  and  to 
carry  them;  that  it  is  not  a  mat- 
ter of  choice  whether  he  will  re- 
ceive and  carry  them  or  not;  that 
he  is  liable  to  prosecution  if  he 
refuses.  2.  That  a  common  car- 
rier is  not  only  bound  to  receive 
and  transport  goods  that  are  of- 
fered, but  he  is  liable  for  their 
loss,  in  all  cases,  except  by  the  act 
of  God  and  public  enemies  and 
the  same  rule,  he  insists,  applies 
to  warehousemen  and  forwarders. 
3.  That  the  duties  and  obligations 
of  common  carriers  and  innkeep- 
ers are,  in  all  respects,  analogous; 
and  an  innkeeper  is  bound  to  re- 
ceive and  entertain  guests,  and  to 
account  for  a  loss  of  their  bag- 
gage while  under  his  care.  4.  That 
a  common  carrier,  being  bound 
Dy  law  to  accept  goods  offered  him 
for  carrying,  and  being  respon- 
sible for  their  safe  delivery  in  all 
cases  except  when  prevented  by 
the  act  of  God  or  public  enemies, 


is  entitled  to  a  lien  for  their 
freight,  against  all  persons,  in- 
cluding even  the  owner,  when  the 
goods  were  tortiously  obtained 
from  him;  that  he  is  not  bound 
to  inquire  into  the  title  of  the 
person  who  delivers  them;  and 
such  lien  exists,  although  there  be 
a  special  agreemest  for  the  price 
of  carriage.  5.  That  the  master 
is  not  bound  (nor  his  agent  for 
him)  to  deliver  any  part  of  a 
cargo  until  the  freight  and  other 
charges  are  paid.  But  for  the 
plaintiffs  it  is  contended:  1.  That 
liens  are  only  known  or  admitted 
in  cases  where  the  relation  of 
debtor  and  creditor  exists,  so  that 
a  suit  at  law  may  be  maintained 
for  the  debt  which  gives  rise  to 
the  lien;  that  a  lien  is  a  mere 
right  to  detain  goods  until  some 
charge  against  the  owner  be  sat- 
isfied. 2.  That  the  defendants  ob- 
tained possession  of  the  goods 
without  authority  from  the  own- 
ers, either  express  or  implied: 
that  no  legal  privity  exists  be- 
tween the  parties,  and  therefore 
the  relation  of  debtor  and  credi- 
tor does  not  exist  between  the  de- 
fendants or  their  principals  and 
the  plaintiffs,  and  no  actioa  could 
be  maintained  by  either  against 
them  for  the  freight,  or  any  part 
of  it.  .  .  .  That  common  car- 
riers are  bound  to  receive  goods 
which  are  offered,  by  the  owners 
or  their  agents  for  transportation 
and  to  carry  them  for  a  just  com- 
pensation, upon  the  routes  which 
they  navigate,  or  over  which  they 
convey   goods   in   the   prosecution 


590 


CARRIERS. 


[§'  555. 


loses  his  property  or  is  robbed  of  it,  or  it  is  sold  or  pledged  with- 
out his  consent,  by  one  who  has  only  a  temporary  right  to  its 


of  their  business,  is  too  well  set- 
tled to  require  discussion,  al- 
though the  general  proposition  is 
subject  to  some  qualifications. 
.  .  .  That  common  carriers  are 
responsible  for  the  safe  convey- 
ance and  delivery  of  the  goods 
committed  to  them  for  carriage  is 
just  as  conclusively  settled  as 
that  they  are  bound  to  receive  and 
carry  them.  A  common  carrier 
is  said  to  be  in  the  nature  of  an 
insurer,  and  is  answerable  for  ac- 
cidents and  thefts,  and  even  for  a 
loss  by  robbery.  He  is  answer- 
able for  all  losses  which  do  not 
fall  within  the  accepted  cases  of 
the  act  of  God,  or  inevitable  acci- 
dent without  the  intervention  of 
man,  and  public  enemies.  .  .  . 
If,  as  contended  for  by  the  defend- 
ants, a  carrier  is  bound  to  receive 
and  carry  all  goods  offered  for 
transportation,  without  the  right 
of  inquiring  into  the  title  or  au- 
thority of  the  person  offering 
them,  then  clearly  he  should  be 
entitled  to  a  lien,  even  against 
the  owner,  upon  the  goods,  until 
he  is  paid  for  the  labor  he  may 
bestow  in  their  carriage. 

"Let  us  now  inquire  whether 
such  is  the  law.  The  doctrine  is 
certainly  opposed  to  all  the  ana- 
logies of  the  law,  and  it  seems 
to  me  to  every  principle  of  com- 
mon justice.  The  only  adjudged 
case  I  have  been  able  to  find 
which  favors  it  is  Yorke  v.  Gre- 
naugh,  2  Ld.  Raymond,  866.  That 
was  replevin  for  a  gelding.  The 
defendant,  who  was  an  innkeeper, 
received  the  horse  from  a  stranger, 
who  had  stolen  him.  On  demand 
being  made  for  the  horse  by  the 
owner,    the    defendant,    who   was 


ignorant  of  the  theft  when  he  re- 
ceived him,  refused  to  deliver  him 
up  until  paid  for  his  keeping,  in- 
sisting on  his  right  of  lien.  The 
court  held  it  reasonable  that  he 
should  have  a  remedy  for  pay- 
ment, which  was  by  retainer; 
and  that  he  was  not  obliged  to 
consider  who  was  the  owner  of 
the  horse,  but  whether  he  who 
brought  him  was  his  guest.  And 
Holt,  C.  J.,  cited  the  case  of  the 
Exeter  carrier,  which  he  thus 
stated:  Where  A.  stole  goods  and 
delivered  them  to  the  Exeter  car- 
rier to  be  carried  to  Exeter,  the 
owner  finding  the  goods  in  the 
possession  of  the  carrier  de- 
manded them  of  him.  The  car- 
rier refused  to  deliver  them  with- 
out being  first  paid  for  the  car- 
riage. The  owner  brought  trover 
for  his  goods,  and  it  was  adjudged 
that  the  defendant  might  detain 
them  for  the  carriage,  on  the 
ground  that  the  carrier  was 
obliged  to  receive  and  carry  them. 
Powell,  J.,  denied  the  authority 
of  the  Exeter  case,  but  concurred 
with  Chief  Justice  Holt  in  the 
decision  of  the  case  then  under 
consideration.  There  is  an  ob- 
vious ground  of  distinction  be- 
tween the  cases  of  carrying  goods 
by  a  common  carrier  and  the  fur- 
nishing keeping  for  a  horse  by  an 
innkeeper.  In  the  latter  case  it 
is  equally  for  the  benefit  of  the 
owner  to  have  his  horse  fed  by 
the  innkeeper  in  whose  custody 
he  is  placed,  whether  left  by  a 
thief  or  by  himself  or  agent;  in 
either  case  food  is  necessary  for 
the  preservation  of  his  horse,  and 
tne  innkeeper  confers  a  benefit 
upon  the  owner  by  feeding  him. 


§  555,1 


COMPENSATION  AND  LIEN  OF  CARRIER. 


591 


use  by  hiring  or  otherwise,  or  a  qualified  possession  of  it  for  a 
specific  purpose,  as  for  transportation,  or  for  work  to  be  done 


But  can  it  be  said  that  a  carrier 
confers  a  benefit  on  the  owner  of 
goods  by  carrying  them  to  a  place 
where,  perhaps,  he  never  designed 
and  does  not  wish  them  to  go? 
.  .  .  The  obligation  of  a  com- 
mon carrier  to  receive  and  carry 
all  goods  offered  is  qualified  by 
several  conditions,  which  he  has 
a  right  to  insist  upon  before  re- 
ceiving them:  1.  That  the  person 
offering  the  goods  has  authority 
to  do  so.  2.  That  a  just  compen- 
sation, or  the  usual  price,  be 
tendered  for  the  carriage.  And 
c,.  That,  although  the  owner  or 
his  agent  offers  goods  for  carriage 
and  tenders  payment  for  the 
freight  in  advance,  still  he  is  not 
bound  to  receive  them  unless  he 
have  the  requisite  convenience  to 
carry  them.  In  an  action  brought 
against  a  carrier  for  refusing  to 
receive  and  carry  goods,  would  it 
not  constitute  a  valid  defense  that 
the  plaintiff  had  stolen  them,  al- 
though at  the  time  of  offering  the 
carrier  may  not  have  known  they 
had  been  stolen?  In  Story  on 
Bailm.,  sec.  582,  it  is  laid  down 
that  a  carrier  is  excused  for  non- 
delivery of  goods  to  the  con- 
signee, when  they  are  demanded 
or  taken  from  his  possession  by 
some  person  having  a  superior 
title  to  the  property.  And  again, 
where  the  adverse  title  is  made 
known  to  the  carrier,  if  he  is  for- 
bidden to  deliver  the  goods  to  any 
other  person,  he  acts  at  his  peril; 
and  if  the  adverse  title  is  well 
founded  and  he  resists  it,  he  is 
liable  to  an  action  for  the  recov- 
ery of  the  goods.  If,  then,  the 
owner  could  reclaim  the  goods  in 
the    hands    of    the    carrier,    after 


their  delivery  to  him,  and  that 
would  excuse  a  non-delivery  to 
the  depositor,  it  is  clear  that  he 
would  be  justified  in  refusing  to 
receive  them  from  one  having  a 
wrongful  possession,  although  at 
the  time  of  such  refusal  he  might 
not  know  the  manner  in  which 
they  had  been  obtained.  So  a 
carrier  is  in  all  cases  entitled  to 
demand  the  price  of  carriage  be- 
fore he  receives  the  goods,  and,  if 
not  paid,  he  may  refuse  to  take 
charge  of  them.  Story  on  Bailm., 
sec.  586;  5  Barn.  &  Aid.  353;  4  id. 
32;  3  Bos.  &  Pull.  48;  and  "S\niit. 
on  Liens,  92.  If,  then,  a  common 
carrier  may  demand  payment  for 
carriage  in  advance,  and  if  he 
may  reject  goods  offered  by  a 
wrong-doer,  or  by  one  having  no 
authority  to  do  so,  is  he  not 
bound  to  take  care  that  the  per- 
son from  whom  he  receives  them 
has  authority  to  place  them  in  his 
custody? 

"In  Story  on  Bailm.,  sec.  585,  it 
it  ©aid:  A  carrier  having  once 
acquired  the  lawful  possession  of 
goods  for  the  purpose  of  carriage 
is  not  bound  to  restore  them  to 
the  owner  again  unless  his  due 
remuneration  be  paid;  evidently 
presupposing  the  goods  to  have 
been  delivered  to  him  by  the 
owner;  and  cites  9  Johns.  17;  3 
Johns.  Cases,  9.  In  Lemprier  v. 
Pat3ley,  2  T.  R.  485,  it  was  held 
that  goods  wrongfully  delivered 
to  the  person  claiming  them,  who 
paid  freight  and  other  charges, 
could  not  be  detained  for  those  ex- 
penses against  the  rightful  owner. 
In  2  Kent's  Com.  638,  it  is  laid 
down  that  possession  is  necessary 
to  create  the  lien,  but  though  there 


592 


CARRIERS. 


[§'  555. 


upon  it,  the  owner  can  follow  and  reclaim  it  in  the  possession  of 
any  person,  however  innocent,"  was  the  lan^iage  of  Fletcher, 


be  possession  of  goods,  a  lien  can- 
not be  acquired  when  the  party 
came  to  that  possession  wrong- 
fully. So,  if  the  party  came  to 
the  possession  of  goods  without 
due  authority  he  cannot  set  up  a 
lien  against  the  owner.  2  Kent's 
Com.  638;  5  T.  R.  604;  4  Bsp.  R. 
174;  7  East,  5.  In  Buskirk  v. 
Purington,  2  Hall  R.  561,  prop- 
erty was  sold  upon  a  condition; 
the  buyer  failed  to  comply  with 
the  condition,  but  shipped  the 
goods  on  board  the  vessel  of  the 
defendants.  The  owner  claimed 
the  goods,  demanded  them,  and, 
on  defendant's  refusal  to  deliver 
them,  brought  trover  for  their 
value.  The  defendants  insisted 
on  their  right  of  lien  for  the 
freight,  but  the  plaintiff  was  al- 
lowed to  recover.  In  Saltus  v. 
Everett,  20  Wend.  275,  the  master 
of  a  vessel,  with  whom  the  de- 
fendant in  error  shipped  goods 
from  New  Orleans  to  New  York, 
during  the  voyage  made  a  new 
bill  of  lading  in  his  own  name 
as  owner.  The  goods  at  JSTew 
York  were  sold  to  the  plaintiff  in 
error,  who  was  ignorant  of  the 
shipmaster's  fraud.  The  owner 
(the  defendant  in  error)  sued  the 
purchaser  for  their  value,  or  re- 
turn. Senator  Verplanck,  in  the 
opinion  which  he  delivered  in  the 
court  of  errors,  held  this  doc- 
trine: 'The  universal  and  funda- 
mental principle  of  our  law  of 
personal  property  is,  that  no  man 
can  be  divested  of  his  property 
without  his  own  consent;  and, 
consequently,  that  even  the  honest 
purchaser,  under  a  defective  title, 
cannot  hold  against  the  true  pro- 
prietor.'    And  again,  'there  is  no 


case  to  be  found,  or  any  reason 
or  analogy  anywhere  suggested 
in  the  books,  which  would  go  to 
show  that  the  real  owner  could 
be  concluded  by  a  bill  of  lading 
not  given  by  himself,  but  by  some 
third  person,  erroneously  or  fraud- 
ulently.' Id.  281.  'If  the  owner 
lose  his  property,  or  is  robbed  of 
it,  or  it  is  sold,  or  pledged  with- 
out his  consent,  by  one  who  has 
only  a  temporary  right  to  its  use, 
by  hiring  or  otherwise;  or  by  a 
qualified  possession  of  it,  for  a 
specific  purpose,  as  for  transporta- 
tion or  for  work  to  be  performed 
upon  it,  the  owner  can  follow  and 
reclaim  it  in  the  hands  of  any 
person,  however  innocent'  Id. 
282.     .     .     . 

"Finally,  on  a  full  and  careful 
consideration  of  this  case,  we  ar- 
rive at  the  following  conclusions: 
1  That  a  common  carrier  is  bound 
to  receive  and  carry  goods,  only, 
when  offered  for  carriage  by  their 
owner  or  his  authorized  agent, 
and  then  only  upon  payment  for 
the  carriage  in  advance,  if  re- 
quired. 2.  If  a  common  carrier 
obtains  the  possession  of  goods 
wrongfully,  or  without  the  con- 
sent of  the  owner,  express  or  im- 
plied, and,  on  demand,  refuses  to 
deliver  them  to  the  owner,  such 
owner  may  bring  replevin  for  the 
goods,  or  trover  for  their  value. 
3.  To  justify  a  lien  upon  goods 
for  freight,  the  relation  of  debtor 
and  creditor  must  exist  between 
the  owner  and  the  carrier,  so  that 
an  action  at  law  might  be  main- 
tained for  the  payment  of  the  debt 
sought  to  be  enforced  by  the 
lien."     See  ante,  §  547  and  note. 


§    556.]  COMPENSATION  .NJSTD  LIEN  OF  CARRIER.  593 

J.,  in  Robinson  v.  Baker.*^  The  rule,  however,  would  be  differ- 
ent where  the  consignor  of  the  property  had  apparent  authority 
from  the  owner  to  ship  the  goods,  for  in  such  cas«  the  carrier 
would  have  the  right  to  look  to  the  owner  for  his  charges  for 
carriage;  the  relation  of  debtor  and  creditor  would  be  created, 
and  the  carrier  would  have  a  lien  on  the  goods  for  its  charges. 
The  same  principles  would  apply  as  in  cases  of  agency.*^ 

§  556.  For  what  charges  will  the  lien  attach. — In  the  absence 
of  an  express  contract  the  lien  of  the  carrier  will  attach  to  se- 
cure the  payment  of  all  the  reasonable  charges  for  the  trans- 
portation of  the  particular  goods  shipped  from  the  point  of 
shipment  to  the  place  of  delivery.  This  would  include  not  only 
the  freight  charges  over  the  initial  carrier's  line,  but,  in  case 
of  through  shipment  over  the  several  different  lines,  the  charges 
advanced  by  each  connecting  can-ier  to  the  carrier  from  whom 
it  received  the  freight,  together  with  the  charges  over  its  own 
line  or  lines,  so  that  the  last  carrier  would  be  entitled  to  a  lien 
upon  the  goods  shipped  for  the  freight  charged  for  the  shipment 
over  its  own  line,  together  with  the  advances  made  for  freight 
and  charges  over  the  lines  from  which  he  received  the  goods; 
and  the  same  rule  would  apply  to  the  carriage  of  freight  by 
water.  If  the  way-bill,  however,  which  accompanied  the 
freight  shows  that  certain  of  the  charges  have  been  paid,  the 
connecting  carrier  is  held  to  a  knowledge  of  that  fact  and  can- 
not have  payment  of  the  same  charges,  by  him  advanced,  pro- 
tected by  a  lien.  But  where  there  is  no  joint  tariff  arrange- 
ment— no  freight  rate  agreed  upon  between  connecting  carriers, 
and  the  initial  carrier  guarantees  a  certain  through  rate  which 
is  less  than  the  amount  charged  by  connecting  carriers  and 
the  last  carrier  who  receives  the  freight  advances  the  charges 
to  the  carrier  from  whom  he  receives  it,  which  amount  added 
to  his  own  freight  charges  makes  an  amount  exceeding  that 
agreed  upon  by  the  initial  carrier,  in  such  case  the  last  car- 
rier will  have  a  lien  for  the  full  amount  of  charges  advanced 
and  his  own  freight  added,  notwithstanding  the  agreement 
made  by  the  initial  carrier;  and  if  the  initial  carrier  had  col- 

48  5  Cush.    (Mass.)   141,  51  Am.  49  York  Co.  v.  111.  Cent.  Ry.  Co., 

Dec.  54,   citing  Saltus  v.  Everett,      3   Wall.    (U.    S.)    107;    Hutch,    on 
20   Wend.    (N.   Y.)    275,   and   dis-      Carriers  (2d  ed.)  §§  490,  491. 
cussing  Yorl<:e  v.  Grenaugh,  2  Ld. 
Raym,  867. 

38 


594  CARRIERS.  [§   557. 

lected  the  stated  through  rate,  and  it  was  not  enough  to  cover 
the  charges  of  connecting  carriers,  the  connecting  carriers  could 
charge  the  difference  and  enforce  a  lien  against  the  property  to 
secure  their  reasonable  charges,  even  though,  as  stated,  it  should 
exceed  the  amount  guaranteed  by  the  initial  carrier.  This  is 
upon  the  theory  that  the  initial  carrier  is  the  agent  of  the  owner, 
or  shipper  of  the  goods,  and  not  of  the  connecting  carrier.^*' 
In  such  case,  however,  the  owner,  being  compelled  to  pay  the 
difference  between  the  guaranteed  amount  and  the  amount 
charged,  would  have  an  action,  and  may  recover  that  differ- 
ence from  the  initial  carrier.^^  But  if  there  has  been  a  pre- 
vious agreement  by  the  several  connecting  carriers  by  which 
through  shipments  and  through  rates  were  established,  and  the 
goods  were  shipped  and  the  rate  guaranteed  according  to  such 
agreement,  in  such  case  the  final  carrier  would  not  be  entitled  to 
compensation  in  any  greater  amount  than  agreed  upon  by  the 
initial  carrier,  because  by  reason  of  such  agreement  the  initial 
carrier  would  be  said  to  be  acting  as  the  agent  of  the  connecting 
carrier  rather  than  as  agent  of  the  shipper.^^ 

§  557.  The  contract  for  shipment  must  be  fulfilled. — The  law 
will  demand  that  the  carrier  keep  his  agreement  as  to  the  ship- 
ment of  goods.  He  cannot  deliver  the  goods  at  a  different 
dock,  or  to  another  carrier  than  the  one  stipulated,  if  the  de- 

50  Schneider   v.   Evans,   25   Wis.  the  latter  company  where  it  has 

241;    Crossan   v.    New   York,    etc.  no   notice   of   the   terms   of   such 

Ry  Co.,  149  Mass.  196.     Goodin  v.  agreement,  and   it  has  a  lien  on 

Southern    Ry.    Co.,    125    Ga.    630;  such  chattels  for  its  own  freight 

and  see  note  to  this  case  in  5  Am.  charges,   and   for  freight  charges 

and     Eng.     Ann.     cases,     576-578,  advanced  by  it  to  a  railroad  com- 

where    numerous    cases    are    col-  pany  which  transported  the  chat- 

lected   upon   the  subject   and  the  tels  from  the  line  of  the  receiving 

rule  stated   to   be   universal   that  company   to    its    own.     Moses    v. 

under  such  cirumstances  the  con-  Port  Townsend  S.  Ry.  Co.,  5  Wash, 

necting  carrier  has  a  lien  for  his  St.  595,  32  Pac.  488.     And  in  the 

charges.  same    case     it    was    held     "that 

51  In  Detroit,  etc.  Ry.  Co.  v.  Mc-  though  a  way-bill  showing  prepay- 
Kenzie,  43  Mich.  609,  it  was  held  ment  of  the  freight  would  pre- 
that:  A  contract  by  a  railroad  sumptively  afford  information  to 
company  to  transport,  for  an  each  connecting  carrier  of  that 
agreed  sum,  paid  in  advance,  fact,  such  presumption  is  not  con- 
chattels  over  its  line  to  a  point  elusive." 

on   the    line    of    another   railroad  52  Evansville,    etc.    Ry.    CJo.    ▼. 

company    with    which    it   has   no  Marsh,  57  Ind.  507. 
tariff    agreement,    does    not    bind 


§    558.]  COMPENSATION  AND  LIEN  OF  CARRIER.  595 

livery  results  in  the  loss  of  the  goods,  without  becoming  liable; 
nor  can  he  demand  a  larger  amount  than  that  stipulated  for. 
In  one  case  "the  master  of  a  vessel  agreed  to  deliver  a  boiler 
and  other  property  at  a  specified  dock  in  the  city  of  Alpena,  for 
one  hundred  dollars.  On  arriving  at  the  dock  he  demanded  one 
hundred  and  fifty  dollars,  and  nine  dollars  dockage,  and  refused 
to  deliver  the  property  until  payment  of  said  sums.  The  own- 
ers of  the  property  offered  to  pay  the  one  hundred  dollars  and 
the  dockage  charges,  which  offer  was  refused,  and  the  master 
landed  the  property  at  another  dock  in  the  city,  instructing  the 
custodian  not  to  deliver  the  same  to  the  owners  except  on  pay- 
ment of  the  one  hundred  and  fifty  dollars.  The  owners  de- 
manded the  property,  delivery  was  refused,  and  they  brought 
replevin  therefor.  Held,  that  by  failing  to  perform  his  con- 
tract, no  lien  attached  to  the  property  for  the  freight  agreed  to 
be  paid.  That  a  partial  performance  is  not  sufficient,  unless 
delivery  be  dispensed  with  or  prevented  by  the  owners;  and 
that  the  dockage  charges  having  been  paid  or  tendered,  the  own- 
ers were  entitled  to  the  possession  of  the  property,  and  upon  re- 
fusal to  deliver  same,  replevin  would  lie."^^ 

§  558.  The  lien,  how  lost,  satisfied  or  discharged. — The  lien 
having  once  attached  can  be  retained  in  force  only  by  posses- 
sion of  the  property  by  the  carrier.  If  possession  is  volun- 
tarily surrendered  to  the  consignee  or  owner,  or  to  any  other 
person  not  the  agent  or  servant  of  the  carrier,  or  under  his  con- 
trol, the  lien  is  lost.  Of  course,  if  the  possession  is  merely  given 
to  an  agent  of  the  carrier,  or  to  one  of  the  servants,  or  to  a  per- 
son as  custodian  for  the  carrier  of  the  property,  the  possession 
does  not  change,  but  still  remains  in  the  carrier  and  the  lien 
could  not  be  lost  by  such  a  delivery.  And  then,  too,  the  carrier 
may  surrender  a  part  of  the  goods  to  the  consignee  and  hold  his 
lien   on  the  balance   for  the  whole   amount   of  his   charges.^'' 

53  Johnston   v.   Davis,   60   Mich.  tial    point    of    shipment."      New 

56;  Hill  V.  Denver,  13  Colo.  35,  4  York  Cent.  Ry.  Co.  v.  Davis,  158 

L.  R.  A.   376;    Evans  v.   Chicago,  N.  Y.  674. 

etc.  Ry  Co.,  11  Mo.  App.  463.  54  Fuller  v.  Bradley,  25  Pa.  St 
"Held,  a  common  carrier  has  not  120;  Jeffris  v.  Pittsburg,  etc.  R. 
only  the  right  to  hold  the  goods  Co.  93  "Wis.  250;  Potts  v.  New 
and  enforce  a  lien  for  its  freight  York,  etc.  R.  Co.,  131  Mass.  455; 
charges,  but  has  a  like  lien  for  all  Chicago,  etc.  R.  Co.  v.  Union 
freight  bills  paid  by  it  to  previous  Packet  Co.,  38  Iowa,  377.  De- 
connecting  carriers  from  the  ini-  livery  of  a  portion  of  the  goods 


596  CARRIERS.  [§   558. 

"Where  a  railroad  company  allowed  the  owner  to  unload  from  its 
cars  and  place  in  bins  on  its  premises  a  consignment  of  coal,  and 
to  carry  away  and  dispose  of  a  part  of  it,  it  was  held  that  the 
carrier  would  not  lose  its  lien  for  its  freight  and  charges  upon 
what  remained.^^  But  where  the  carrier  put  his  refusal  to  de- 
liver the  goods  to  the  owner  upon  the  ground  that  they  were  not 
in  his  possession  at  the  place  where  a  demand  is  duly  made,  it 
was  held  that  he  waived  his  lien  because  the  denial  of  posses- 
sion excused  the  owner  from  making  a  tender  of  the  carrier's 
charges.^^  And  where  goods  were  forwarded  to  a  commission 
merchant  by  a  steamboat,  and  were  unloaded  and  placed  on  the 
wharf,  and  the  bill  of  lading  sent  to  the  owner,  who  removed 
part  of  the  goods  without  paying  the  freight,  it  was  held  that 
these  facts  did  not  amount  to  a  deliver^'  of  the  goods  nor  a 
waiver  of  the  lien  for  freight,  unless  it  was  intended,  of  which 
a  jury  is  to  judge.  The  court  say:  "The  goods,  although  put 
out  of  the  steamboat  on  the  wharf,  were  still  in  the  possession 
of  the  agents  of  the  boat,  as  it  clearly  appeared  from  the  testi- 
mony ;  and  the  act  of  unloading  a  boat  and  placing  the  merchan- 
dise on  the  wharf  does  not  indicate  any  intention  to  part  with 
the  possession  of  it  until  the  freight  is  paid.  Indeed,  the  law 
is  that  the  officers  cannot  detain  the  goods  on  board  the  boat 
until  the  freight  is  paid,  as  the  merchant  or  consignee  would 
then  have  no  opportunity  of  examining  their  condition.  It  was 
the  duty  of  the  carriers  to  send  the  bill  of  lading  to  the  con- 
signee to  apprise  him  that  the  goods  had  arrived  and  were 
ready  to  be  delivered,  so  that  he  could  attend  and  examine  their 
condition,  pay  the  freight  due  and  take  them  into  his  possession. 
Sending  the  bill  of  lading  to  him,  therefore,  amounted  to  noth- 
ing more  than  a  communication  of  the  fact  that  the  goods  had 
arrived  and  an  offer  to  deliver  them  upon  payment  of  the 
freight.  No  other  inference  arises  from  the  act;  nor  could  it 
justly  create  an  implication  that  the  delivery  of  the  bill  of  lad- 

on  which  the   carrier  has  a  lien  55  Dane  et  al.  v.  Old  Colony,  etc. 

for    freight    does    not    discharge  R.  Co..  14  Gray   (Mass.),  143. 

the   lien   on   the   portion   not   de-  se  Adams  EIx.  Co.  v.  Harris,  120 

livered.     New  York  Cent.  &  H.  R.  Ind.  73,  7  L.  R.  A.  214;  Vinton  v. 

Co.  V.  Davis,  34  N.  Y.  S.  306;   af-  Baldwin,    95    Ind.    433;    House   v. 

firmed,  158  N.  Y.  674;   N.  H.,  etc.  Alexander,  105  Ind.  109. 
Co.   V.   Camel,   128   Mass.   104,   35 
Am.  Rep.  360. 


§    558.]  COMPENSATION  AND  LIEN  OF  CARRIER.  597 

ing  was  intended  to  operate  as  a  waiver  of  the  lien  for  the 
freight  and  a  delivery  of  the  possession  of  the  goods  to  the  con- 
signee."^^ 

So  it  would  appear  that  there  must  be  an  intention  to  deliver 
the  property,  and  if  the  consignee  should  obtain  the  goods  from 
the  carrier  by  fraud  or  trick,  it  could  not  be  held  to  be  a  deliv- 
ery, and  in  such  case  the  lien  would  not  be  lost.^*  But  a  mere 
mistake  upon  the  part  of  the  carrier  in  delivering  the  property, 
as,  for  example,  believing  that  the  consignee  is  responsible,  or 
that  he  has  other  security  for  the  payment  of  the  freight,  would 
invalidate  the  lien.  And  where  property  was  shipped  over  the 
carrier's  road  with  directions  to  deliver  it  to  a  dealer  at  its 
destination  upon  his  surrendering  the  bill  of  lading  therefor,  but 
on  its  arrival,  through  the  negligence  of  the  carrier's  agent,  he 
received  the  goods  from  the  warehouse  of  the  carrier  without  sur- 
rendering or  offering  to  surrender  the  bill  of  lading  or  pay  the 
freight,  and  afterwards  sold  it  to  a  bona  fide  purchaser,  it  was 
held  that  neither  the  shipper  nor  the  carrier  could  recover  the 
goods  from  the  bona  fide  purchaser.^^  And  where  the  carrier 
delivered  the  goods  to  an  assignee  for  creditors  of  the  consignee, 
it  was  held  that  the  lien  was  not  lost.  The  court  said :  ' '  A  carrier 
lias  a  lien  upon  goods  and  right  of  detention  until  the  freight  is 
paid.  If  he  parts  with  the  possession  out  of  the  hands  of  him- 
self and  his  agent  he  loses  his  lien  upon  them.  "When  these 
goods  were  assigned  they  were  not  only  for  the  general  creditors 
of  Pool,  but  for  those  who  held  liens  upon  the  property  assigned, 
so  the  assignee  received  the  estate  to  be  distributed  according  to 
the  rights  of  the  parties.  He  was  acting  in  the  trust  capacity, 
and  one  of  the  beneficiaries  of  the  trust  was  the  appellant;  so 
the  delivery  of  the  possession  of  the  property  to  the  assignee 

57  Boggs  &  Russell  v.  Martin,  by  the  fraud  or  misconduct  of  a 
13  B.  Mon.   (Ky.)   239,  243.  third  person,  he  who  first  reposes 

58  Bigelow  V.  Heaton,  4  Denio  the  confidence,  or  by  his  negli- 
(N.  Y.),  496,  6  Hill  (N.  Y.),  43.  gent  conduct  made  it  possible  for 

59  Norfolk,  etc.  Co.  v.  Barnes,  104  the  loss  to  occur,  must  bear  the 
N.  C.  25,  5  L.  R.  A.  611.  The  court  loss.'  This  doctrine  is  recognized 
say:  "We  think  this  case  falls  in  State  v.  Lewis,  73  N.  C.  138; 
within  the  principle  declared  in  Vass  v.  Riddick,  89  N.  C.  6;  State 
Wilmington  &  W.  Ry.  Co.  v.  Kit-  v  Peck,  53  Me.  284;  Hern  v.  Nic- 
chin,  91  N.  C.  39,  'that  where  one  hols,  1  Salk.  289." 

of   two   persons   must  suffer   loss 


598  CARRIERS.  [§   559. 

was  for  the  benefit  of  all  of  Pool's  creditoi-s,  including  appellant, 
according  to  their  respective  interest. ' '  *** 

Where  a  cargo  of  lath,  sold  by  the  consignee  to  the  claimant 
before  arrival,  was  discharged  without  notice  to  complainant  of 
any  lien  or  claim  for  freight  and  demurrage,  it  being  customary 
in  the  port  of  New  York  to  discharge  cargoes  from  canal-boats 
before  demanding  freight  and  demurrage,  and  the  laths,  as  fast 
as  they  were  discharged,  were  received  by  the  claimant  and 
transported  from  the  wharf  to  his  lumber  yard,  some  half  mile 
distant,  the  claim  for  freight  and  demurrage  against  the  con- 
signee and  shipper  being  afterwards  disputed  as  to  the  amount, 
it  was  held  that,  as  the  delivery  was  unconditional,  the  lien  had 
been  lost.®^ 

§  559.  Lien  satisfied. — The  property  is  held  by  the  car- 
rier as  security  for  the  payment  of  his  freight  and  proper 
charges.  It  goes  without  saying,  therefore,  that  if  the  consignee 
pays  the  freight,  or  in  any  way  satisfies  the  carrier  for  the 
amount  of  his  claim,  the  lien  will  be  satisfied.  So,  if  the  carrier 
extends  the  consignee  credit  for  the  freight  or  takes  his  note,  or 
accepts  other  obligations  which  will  be  inconsistent  with  an  in- 
tention to  hold  the  property  by  virtue  of  his  lien,  the  lien  will 

60  Caye  v.  FaUel,  Assignee,  etc.,  ing  the  ties  while  the  railroad 
49  L.  R.  A.  251.  Where  a  mis-  company  built  the  tracks  and  fur- 
take  was  made  by  the  clerks  of  nished  the  iron;  the  spur  tracks 
the  carrier  on  account  of  mis-  being  operated  exclusively  by  the 
understanding  as  to  the  rate  of  railroad  company,  and  part  of  its 
freight  upon  certain  articles  de-  charges  was  for  placing  the  coal 
livered  for  shipment  by  the  ship-  upon  spur  tracks;  it  being  neces- 
per  afterwards,  it  was  held  that  sary  to  remove  the  cars  from  the 
the  carrier  would  not  be  held  to  spur  tracks  and  move  them 
the  amount  given  the  shipper  by  along  the  main  track,  thence  along 
mistake,  but  that  he  would  be  a  branch  track  of  the  consignee's 
entitled  to  compensation  for  the  premises  to  his  docks  before  the 
regular  amount,  and  would  have  consignee  could  handle  the  coal; 
a  lien  upon  the  goods  for  that  this  being  done  by  an  engine  and 
amount.  Rowland  v.  New  York,  crew  of  the  railroad  company, 
etc.  R.  Co.,  61  Conn.  103,  23  Atl.  which  the  superintendent  fur- 
755.  nished  on  request  it  was  held  that 

61  Eagan  v.  A  Cargo  of  Spruce  placing  the  cars  on  the  spur 
Lath,  43  Fed.  480;  afBrming  41  tracks  was  not  a  delivery  of  the 
Fed.  830.  Where  carloads  of  coal  coal  so  as  to  deprive  the  railroad 
on  reaching  their  destination  company  of  its  lien  for  freight, 
were  placed  on  spur  tracks  on  the  N.  Y.  Cent.  &  H.  R.  Co.  v.  Davis, 
consignee's   premises,   he   furnish-  158  N.  Y.  674,  34  N.  Y.  Sup.  206. 


§    560.]  COMPENSATION  AND  LIEN  OF  CARRIER.  599 

be  held  to  be  void.®^  And  where  the  carrier  had  negligentily  de- 
layed delivery  of  the  goods  so  that  his  liability  for  damages 
therefor  was  equal  to  or  greater  than  the  amount  of  the  freight, 
it  was  held  that  the  consignee  could  maintain  replevin  without 
tender  of  the  freight.®^  But  the  carrier  will  at  all  times  be 
excused  from  liability  where  the  damage  is  the  result  of  the 
act  of  God^  the  public  enemy,  or  the  acts  of  the  shipper;  in  fact, 
the  limitations  upon  the  liability  of  the  carrier  will  be  applied; 
and  if  the  damage  results  from  any  of  these  causes,  it  will  not 
defeat  the  lien  or  become  an  offset  in  an  action  for  the  freight."* 

§  560.  The  lien  discharged. — The  carrier  holds  the  goods 

to  secure  him  for  the  payment  of  the  freight  and  charges.  The 
lien  is  therefore  only  to  the  extent  of  the  amount  due  the  carrier. 
A  payment  of  this  amount,  as  we  have  seen,  will  discharge  the 
lien.  It  therefore  follows  that  a  tender  of  the  full  amount  of 
the  charges  that  are  due  the  carrier,  and  for  which  he  holds  the 
property,  would  operate  as  a  discharge  of  the  lien.  The  carrier 
has  no  further  or  other  interest  in  the  goods,  and  whenever  the 
consignee  offers  by  tender  to  pay  this  amount  the  goods  must  be 
released.  If  a  tender  is  made  of  the  amount  that  is  justly  due 
to  the  carrier,  and  the  carrier  should  refuse  to  accept  the  tender 
and  release  the  goods,  the  consignee  could  recover  them  by  an 
action  of  replevin,  or  the  amount  of  their  value  in  trover. 

*'It  is  a  general  rule  of  law  that  where  a  person  holds  a  lien 
upon  property,  a  tender  by  the  owner  of  the  property  of  the 
amount  of  the  lien  will  discharge  it.  In  fact,  the  detention  of 
the  goods  upon  a  different  and  inconsistent  ground  will  be  a 
waiver  of  the  lien.  It  is  a  well-settled  rule  in  the  law  of  pledges 
that  if  the  money  for  which  the  goods  are  pawned  be  tendered  to 
the  pawnee,  and  he  refuses  to  receive  it,  he  becomes  thereby  a 
wrong-doer,  and  his  special  property  in  the  chattel  is  determined. 
.  .  .  The  principle  governing  the  subject  is,  that  tender  is 
equivalent  to  payment  as  to  all  things  which  are  incidental  and 
accessorial  to  the  debt.  The  creditor,  by  refusing  to  accept,  does 
not  forfeit  his  right  to  the  thing  tendered,  but  he  does  lose  all 
collateral  benefits  or  securities.     The  instantaneous  effect  is  to 

62  Secord  v.  Buffalo,  etc.  Co.,  5  s*  Gait  v.  Archer,  7  Grat.   (Va.) 

Blatch.  525.  307;    Newhall    v.   Varges,    15    Me. 

63Moran  Bros.  Co.  v.  Northern      314. 
Pac.   R.    Co.,    1   Wash.    53;    Ban- 
croft V.  Peters,  4  Mich.  619. 


600  CARRIERS.  [§    560. 

discharge  any  collateral  lien  as  a  pledge  of  goods  or  a  right  of 
distress.  Upon  these  principles  it  has  been  held  that  if  the  debtor 
tender  the  debt  to  the  pledgee,  and  he  refuse  to  deliver  up  the 
pledge,  he  is  liable,  though  it  be  subsequently  lost,  or  even 
forcibly  taken  from  him. ' '  ^^ 

65  Tiffany  v.  St.  Johns,  65  N.  Y.  Goode,  6  C.  B.  (N.  S.)  367;  Coggs 
314,  318,  22  Am.  Rep.  612;  Winter  v.  Bernard,  2  Ld.  Raym.  909; 
V.   Coit,   7   N.   Y.   288;    Weeks   v.      Kortright  v.  Cady,  21  N.  Y.  366. 


CHAPTER  XI. 

TERMINATION  OF  THE  CARRIER'S  LIABILITY— HIS  LIABILITY 
AS  A  WAREHOUSEMAN  AND  HOW  DISCHARGED. 


561.  Delivery    of    the    goods    to 

the  consignee. 

562.  The  bill  of  lading. 

563.  Rules    as    to    the    delivery 

applicable  to  all  carriers. 

564.  The    requirements    of    the 

carrier    upon    arrival    of 
the  goods  at  destination. 

Express    Companies. 

565.  Requirements     as     to     de- 

livery. 

566.  When  the  express  company 

becomes  warehousemen. 

567.  Express  company's  liability 

as  warehousemen. 

Duty  of  express  com- 
panies when  goods  re- 
fused by  consignee. 

Goods  sent  C.  O.  D. 

Where  consignee  fails  to 
receive  the  goods  or  re- 
fuses to  receive  them. 

Right  to   inspect   the 

goods  sent  C.  O.  D. 

572.  Carrier  may  assist  In  pre- 

venting fraud  on  the  part 
of  consignor. 

Carriers  by  Water. 

573.  Termination  of  liability. 

574.  Carrier    must    be     reason- 

ably   diligent    in  giving 
notice  to  consignee. 

575.  Must  provide  suitable  place 


568. 


569. 
570. 


571, 


for  landing  and  caring 
for  goods. 
§  576. Notice  must  be  act- 
ual, and  for  a  removal 
of  goods  at  a  proper  time 
if  time  fixed. 

577.  Contract  —  Usage  — 

Course  of  dealing. 

578.  Usage    —    Course    of 

dealing. 

579.  Consignee    cannot    prolong 

liability  as  carrier. 

Carriers  by  Railroad. 

580.  Termination  of  liability. 

581.  Three   distinct  views. 

582.  The  Massachusetts  rule. 

583.  The  New  Hampshire  rule. 

584.  The  rule  demanding  notice 

to  consignee. 

585.  What  will  excuse  delivery. 

586.  Stoppage  in  transitu. 

587.  The  law  favors  the  right. 

588.  Some  requisites  to  the  right 

to   exercise    stoppage    tn 
transitu. 

589.  How    exercised    —    Notice 

by  whom  —  To  whom. 

590.  How  can  the  right  be  de- 

feated. 

591.  Lien    of    the     carrier    for 

freight  has  priority. 

592.  Stoppage     in     transitu     — 

Duty  of  carrier  —  Ter- 
mination of  liability. 


§  561.  Delivery  of  the  goods  to  the  consignee. — The  object 
of  the  employment  on  the  part  of  the  shipper  is,  that  the  goods 
may  be  safely  carried  and  delivered  to  the  consignee.  The  car- 
rier undertakes  to  do  this  and  so  the  duty  of  the  carrier  is  plain. 
He  must  carry  and  deliver  the  goods  to  the  consignee  or  his 


602  CAKRIERS.  [§'   561. 

order,  and  to  no  one  else,  at  a  proper  time  and  at  a  proper  place. 
The  liability  of  a  common  carrier  as  an  insurer  continues  until 
he  has  so  delivered  the  goods  to  the  consignee  or  the  person  law- 
fully entitled  to  receive  them,  or  until  the  happening  of  that 
which  excuses  such  delivery  and  permits  him  to  hold  the  goods 
as  a  warehouseman  or  deliver  them  to  some  other  warehouseman. 
"It  is  the  settled  doctrine  of  England  and  this  country  that 
there  must  be  an  actual  delivery  of  the  property  to  the  proper 
person.  .  .  .  And  in  no  other  way  can  the  carrier  discharge 
his  responsibility  except  by  proving  that  he  has  performed  such 
engagement,  or  has  been  excused  from  the  performance  of  it,  or 
been  prevented  by  the  act  of  God  or  the  public  enemy.^  And 
where  the  action  was  for  failure  of  an  express  company  to  carry 
and  deliver  a  package  of  money,  the  supreme  court  of  Illinois  in 
their  opinion  thus  forcefully  and  tersely  state  the  obligations  of 
the  carrier:  "They  (the  defendant  company)  became  insurers 
for  its  safe  delivery;  being  so,  nothing  can  excuse  them  from 
their  obligation  safely  to  carry  and  deliver  but  the  act  of  God  or 
the  public  enemy.  This  rule  of  the  common  law,  the  rigid  ap- 
plication of  which  has  given  so  much  satisfaction  and  security  to 
the  commerce  of  nations,  is  properly  invoked  in  cases  like  this. ' '  ^ 
The  supreme  court  of  Illinois,  adopting  the  language  of 
Hutchinson  on  Carriers,'  in  the  case  of  Pacific  Exp.  Co.  v.  Shearer, 

1  Southern     Exp.     Co.     v.     Van  Tex.  201;   Howard  v.  Old  Domin- 

Meter,   17   Fla.   783,   35   Am.   Rep.  ion  Co.,  83  N.  C.  158,  35  Am.  Rep. 

107;    Am.   Exp.   Co.   v.    Stack,   29  571;   Ela  v.  Am.,  etc.  Exp.  Co.,  29 

Ind.  27;   Price  v.  Oswego,  etc.  Co.,  Wis.  611,  9  Am.  Rep.   619;    Atch- 

50  N.  Y.   213.  ison,    etc.    R.    Co.   v.    Schrivor,    72 

2U.  S.  Exp.  Co.  V.  Hutchins,  67  Kan.  55,  84  Pac.  119,  4  L.  R.  A. 

111.  349;  Baldwin  v.  Am.  Exp.  Co.,  (N.  S.)   1056.    Direction  in  a  bill 

23  111.  197,  17  Am.  Dec.  190.     In  of  lading  to  notify  a  certain  per- 

Pacific  Exp.    Co.   v.    Shearer,   160  son  of  the  arrival  of  goods  which 

111.   215,   37  L.  R.  A.   177,   it  was  are  consigned  to  the  order  of  the 

held  "that  a  carrier  is  an  insurer  consignor   or   of   a   third    person, 

of  the  safe  delivery  of  the  goods  does  not  justify  the  carrier  in  de- 

to  the  person  to  whom  they  are  livering  the   goods  to  the  person 

consigned."  whom    it    is    directed    to    notify, 

3  Hutch,  on  Carriers,  sec.  344 ;  without  the  production  of  the  bill 
Northern  Pac.  R.  Co.  v.  Commer-  or  shipping  receipt  properly  in- 
cial  Nat.  Bank,  123  U.  S.  727;  dorsed,  and  if  the  carrier  does  de- 
Indianapolis,  etc.  R.  Co.  V.  Hern-  liver  the  goods  to  him  under  such 
don,  81  111.  143;  Erie  Dispatch  Co.  circumstances  it  is  liable  for  the 
V.  Johnson,  87  Tenn.  490;  Mo.  value  thereof  to  the  holder  of  the 
Pac.  Ry.  Co.  v.  Heidenheimer,  82  bill   or   shipping   receipt.     North- 


§    561.]        TERMINATION  OF  LIABILITY  OP  WAREHOUSEMEN.  603 

above  cited,  say :  ' '  No  circumstances  of  fraud,  imposition  or  mis- 
take will  excuse  the  common  carrier  from  responsibility  for  a 
delivery  to  the  wrong  person.  The  law  exacts  of  him  absolute 
certainty  that  the  person  to  whom  the  delivery  is  made  is  the 
party  rightfully  entitled  to  the  goods,  and  puts  upon  him  the 
entire  risk  of  mistakes  in  this  respect,  no  matter  from  what 
cause  occasioned,  however  justifiable  the  delivery  may  seem  to 
have  been,  or  however  satisfactory  the  circumstances  or  proof  of 
the  identity  may  have  been  to  his  mind ;  and  no  excuse  has  ever 
been  allowed  for  a  delivery  to  a  person  for  whom  the  goods  were 
not  directed  or  consigned."* 

Because  of  this  rigid,  unalterable  rule  as  to  the  delivery  of  the 
property  by  the  carrier,  the  carrier  will  be  fully  protected  in  his 
efforts  to  avoid  mistake  or  wrong  delivery  of  the  goods.  He  has 
a  right  to  make  thorough  iuvestigatin,  acting  at  all  times  in  good 
faith  as  to  the  identity  of  the  person  claiming  the  goods.  Where 
goods  had  been  delivered  and  carried  to  their  destination,  and  the 
carrier  refused  upon  demand  to  deliver  them  to  the  plaintiff,  who 
claimed  to  be  the  consignee,  coupling  the  refusal  with  an  offer  to 
deliver  the  goods  if  the  plaintiff  would  produce  any  papers 
showing  ownership  or  authority  to  receive  them,  it  was  held 
"that  it  should  have  been  submitted  to  the  jury  whether  the  re- 
fusal was  qualified,  and,  if  so,  whether  the  qualification  was  rea- 
sonable and  was  the  true  reason  for  not  delivering  the  goods." 
The  court  say:  "The  defendants  were  bailees  of  the  property, 
under  an  obligation  to  deliver  it  to  the  rightful  owner.  They 
would  have  been  liable  had  they  delivered  the  goods  to  a  wrong 
person.  Common  carriers  deliver  property  at  their  peril,  and 
must  take  care  that  it  is  delivered  to  the  right  person,  for  if  the 
delivery  be  to  the  wrong  person,  either  by  an  innocent  mistake  or 
through  fraud  of  third  persons,  as  upon  a  forged  order,  they 
will  be  responsible,  and  the  wrongful  delivery  will  be  treated  as 

ern    Pa.    R.    Co.    v.    Commercial  cases,  97  and  notes  page  100,  where 

Nat.  Bk.,  123  U.  S.  727,  31  L.  Ed.  a  large  number  of  cases  are  col- 

287;    Southern  R.  Co.  v.  Atlantic  lected     and     the     principle     fully 

Nat.  Bk.,  50  C.  C.  A.   558,  56  L.  stated.      Gibbons    v.    Farwell,    6$ 

R.  A.   546;    Libby  v.   Ingalls,   124  Mich.  344;   Forbes  v.  Boston,  etc. 

Mass.  503.  R.  Co.,  133  Mass.  154.     North-  Pa. 

4  Liability    of    carriers    for    de-  R.  Co.  v.  Commercial  Bk.,  123  U. 

livery  of  goods  to  wrong  persons,  S.   277;    St.  Louis,   etc,  R.  Co.   v. 

see  Southern  R.  Co.  v.  Webb,  143  Lamed,  103  111.  293. 
Ala.   304,   5  Am.   and   Eng.,   Ann. 


€04  CARRIERS.  [§'  562. 

a  conversion.  The  duties  of  carriers  may  be  varied  by  the  differ- 
ing circumstances  of  cases  as  they  arise ;  but  it  is  their  duty  in  all 
cases  to  be  diligent  in  their  efforts  to  secure  a  delivery  of  the 
property  to  the  person  entitled,  and  they  will  be  protected  in  re- 
fusing delivery  until  reasonable  evidence  is  furnished  them 
that  the  party  claiming  is  the  party  entitled,  so  long  as  they  act 
in  good  faith  and  solely  with  a  view  to  a  proper  delivery. ' '  ^ 

As  we  have  seen,  the  refusal  to  deliver  the  goods  must  be 
in  good  faith  and  upon  reasonable  grounds.  If  the  carrier  re- 
fuses simply  for  the  reason  that  he  desires  to  deprive  the  con- 
signee of  the  possession  of  the  goods,  or  for  personal  reasons,  or 
to  gratify  others,  or  voluntarily  undertakes  to  retain  the  property 
in  his  possession,  he  would  be  liable  in  an  action  as  for  conver- 
sion of  the  property.  And  so  where  a  carrier  refused  to  deliver 
consigned  carloads  of  freight  to  the  consignees  because  they  en- 
tered into  a  combination  to  resist  the  enforcement  of  rules  pro- 
viding demurrage  for  the  unreasonable  detention  of  cars,  it  was 
beld  that  the  carrier  would  not  be  justified.^ 

§  562.  The  bill  of  lading. — The  usual  course  of  business 

in  shipping  gods,  where  a  bill  of  lading  is  delivered  to  the  ship- 
per, has  been  stated.  But  by  way  of  illustration  it  is  perhaps 
proper  to  recall  that  subject  in  connection  with  the  delivery  of 
the  goods.  In  cases  where  the  original  bill  of  lading  has  been 
forwarded  to  the  consignee  or  has  been  by  him  indorsed  and  de- 
livered to  a  third  person,  or  where  the  bill  of  lading  has  been 
sent  through  the  bank  with  draft  attached,  upon  which  the  ship- 
per at  his  home  bank  has  received  advances,  the  only  security  for 
these  advances,  and  the  only  real  safety  of  the  shipper  or  his  in- 
dorsee, is  in  the  rigid  rule  of  law  that  demands  without  exception 
that  the  carrier  shall  deliver  the  goods  only  to  the  person  to 
whom  they  are  consigned,  and  that  he  will  follow  explicitly  the 
directions  given  him  in  the  bill  of  lading.  And  so  the  carrier 
has  the  right  to  demand,  and  should  always  demand  before  de- 

6  McBntee  v.  New  Jersey  Steam-  that  the  party  claiming  the  goods 

boat  Co.,  45  N.  Y.  34,  6  Am.  Rep.  is  the  person  entitled,  so  long  as 

28.     In  Baltimore  &  Ohio  R.  Co.  they  act  in  good  faith  and  solely 

V.  Humphrey,  59  Md.  390,  it  was  with  a  view  to  a  proper  delivery." 
held  that  "the  carrier  will  be  pro-  s  Kentucky  Wagon   Mfg.   Co.   v. 

tected   in   refusing  delivery   until  Railroad  Co.  et  al.,  98  Ky.  152,  36 

reasonable   evidence   is   furnished  L.  R.  A.  850. 


§    562.]        TERMINATION  OF  LIABILITY  OF  WAREHOUSEMEN.  605 

livering  the  goods,  the  original  bill  of  lading  that  was  issued  at 
the  time  of  the  shipment,  in  order  that  he  may  know  that  all  the 
conditions  have  been  fulfilled,  and  that  the  goods  are  being  de- 
livered to  the  person  legally  entitled  thereto.  The  carrier  al- 
ways assumes  the  risk,  when  he  delivers  the  goods,  that  he  has 
delivered  to  the  person  entitled  to  receive  them,  and  so  should 
require  the  bill  of  lading  to  be  produced. 

Where  a  car  of  goods  were  shipped,  the  shippers  consigning 
them  to  themselves,  and  at  the  same  time  drawing  for  the  amount 
of  their  value  by  attaching  a  draft  to  a  bill  of  lading,  upon  a 
third  party,  the  carrier  delivering  the  goods  without  requiring 
the  production  of  the  bill,  it  was  held  that  the  carrier  was  liable 
for  the  amount  of  the  draft.  The  court  say :  ^  * '  The  agent  de- 
livered the  car  without  the  bill  of  lading  and  without  an  accept- 
ance of  the  draft.  This  he  had  no  right  to  do.  The  title  to  the 
property  remained  in  the  consignors  until  delivery  in  accordance 
with  the  conditions.  Bills  of  lading  are  symbols  of  property, 
and  when  properly  indorsed  operate  as  a  delivery  of  the  property 
itself,  investing  the  indorsee  with  a  constructive  custody  which 
serves  all  the  purposes  of  an  actual  possession,  and  so  continues 
until  there  is  a  valid  and  complete  delivery  of  the  property 
under  and  in  pursuance  of  the  bill  of  lading  and  to  the  person 
entitled  to  receive  the  same.  There  could  be  no  delivery  ex- 
cept in  acordance  with  the  bill  of  lading.^  Ordinarily  the  owner 
of  the  goods  may  direct  their  delivery,  when  there  is  no  bill  of 
lading  assigned  or  indorsed,  to  a  Ijona  fide  holder;  that  is,  to  a 
person  who  has  in  good  faith  advanced  money  upon  the  bill  by 
payment  of  a  draft,  or  who  has  accepted  a  draft  attached  to  the 
bill  of  lading.  Where  the  draft  has  been  paid,  or  accepted  under 
such  circumstances,  the  goods,  to  the  extent  of  the  amount  of  the 
draft,  together  with  the  right  of  possession,  have  passed  to  the 
acceptor  or  payer  of  the  draft,  and  the  carrier  cannot  relieve 
himself  of  liability  until  he  delivers  the  goods  to  such  consignee 
or  indorsee  of  the  bill,  for  in  such  case  the  shipper  and  former 
owner  have  constructively  delivered  the  property  to  such  an  in- 
dorsee. 

7  Pacific  Ry.  Co.  v.  Stern  &  N.  Y.  579;  Heiskell  v.  Bank,  89 
Spiegle,  119  Pa.  St.  24.  Pa.  St.  155;   Dows  v.  Bank,  91  U. 

8  Boatmen's  Savings  Bank  v.  S.  618;  Stollenwerck  v.  Thatcher, 
"West.,  etc.  R.  Co.,  81  Ga.  221;  Fur-  115  Mass.  224;  Benj.  on  Sales, 
man  v.   Union   Pac.   Ry.   Co.,   106  §  332. 


606  CARRIERS.  [§'  563. 

Where  a  bill  of  lading,  by  the  terms  of  which  the  goods  are 
consigned  to  the  order  of  the  consignor,  is  indorsed  in  blank  and 
negotiated  for  value  as  security  for  a  draft  drawn  by  the  con- 
signor on  a  third  person,  the  court  held  that  the  carrier  has  no 
right  to  deliver  the  goods  to  such  third  person  without  production 
of  the  bill  of  lading  or  authority  from  the  holder  thereof,  and  the 
rights  of  the  holder  of  such  draft  and  bill  of  lading  in  good  faith 
and  for  value  against  the  carrier  are  not  affected  by  subsequent 
fraud  of  the  consignor  of  which  said  holder  had  no  notice.  And 
where  a  consignor  of  grain  drew  on  the  consignee  with  the  bill 
of  lading  attached,  and  the  consignee  paid  the  draft  with  money 
obtained  from  bankers  on  the  security  of  a  transfer  of  the  bill 
of  lading  to  them,  the  consignee  becoming  insolvent,  the  carrier, 
without  demanding  the  bill  of  lading,  delivering  the  grain  to 
the  consignor,  it  was  held  that  the  carrier  was  liable  to  the 
bankers  for  the  value  of  the  grain,  notwithstanding  the  consignee 
was  largely  indebted  to  the  consignor.^  But  where  bills  of  lad- 
ing for  grain  were  duly  indorsed  and  pledged  to  a  bank  as  col- 
lateral for  a  note,  and  the  bank  was  in  the  habit  of  permitting 
the  pledgor  to  withdraw  bills  and  substitute  others  for  the  pur- 
pose of  allowing  the  pledgor  to  obtain  the  freight,  and  the 
pledgor  withdrew  certain  bills,  presented  them  to  the  railroad 
company,  obtained  the  freight,  and  returned  them  to  the  bank, 
it  was  held  that  the  carrier  was  not  liable  therefor  to  the  bank.^** 

§  563.  Rules  as  to  the  delivery  applicable  to  all  carriers. — 
The  rule  requiring  delivery  of  the  goods  to  the  proper  consignee 
is  applicable  to  all  common  carriers  without  exception,  whether 
they  be  carriers  by  water  or  by  land ;  whether  it  be  heavy  freight 
or  express  packages.  "All  classes  of  common  carriers  are  re- 
sponsible, and  equally  responsible,  for  a  loss  of  the  goods  by  de- 
livery of  them  to  the  wrong  person. "  ^^ 

swells  V.   Oregon,   etc.  R.   Co.,  Co.,  15  Am.  L.  Reg.  21;  National, 

32  Fed.  51.  etc.  Banking  Co.  v.  Delaware,  etc. 

10  Douglass  V.  People's  Bank,  32  R.  Co.,  70  N.  J.  L.  774,  58  Atl.  311. 
Am.  &  Eng.  Cases,  510.  May    deliver    to  duly    authorized 

11  Winslow  y.  Railway  Co.,  42  agent.  Brunswick,  etc.  R.  Co.  v. 
Vt.  700,  1  Am.  Rep.  365,  citing  D.  Rothchild  &  Co.,  119  Ga.  604, 
Stevenson  v.  Hart  et  al.,  4  Bing.  46  S.  E.  830.  Duty  to  deliver  to 
476,  13  E.  C.  L.  596;  Duff  v.  Budd,  consignee.  Burr  v.  Adams  Ex- 
3  Brod.  &  Bing.  177,  7  E.  C.  L.  press  Co.,  71  N.  J.  263,  58  Atl.  609. 
€71;    Fletcher   v.    American   Exp. 


§    564.]        TERMINATION  OF  LIABILITY  OF  WAREHOUSEMEN.  607 

§  564.  The  requirements  of  the  carrier  upon  arrival  of  the 
goods  at  destination. — The  requirements  of  the  carrier  upon 
the  arrival  of  the  goods  at  their  destination,  and  the  manner  of 
terminating  their  liability,  varies  somewhat,  depending  upon  the 
kind  of  carrier  that  has  the  goods  for  carriage;  that  is  to  say 
custom  and  the  general  course  of  business  has  fixed  upon  the 
express  company  the  requirement  of  making  a  personal  delivery 
in  cities  and  towns  of  enough  importance  to  warrant  sufficient 
business  so  that  the  company  can  reasonably  afford  messengers 
to  do  this  work ;  and  in  such  case  the  company,  by  its  agents,  are 
expected  to  find  the  consignee  and  deliver  the  goods,  and  not 
wait  for  him  to  call  for  the  package  after  having  been  notified. 
But  in  places  where  the  express  companies  have  no  messengers 
to  make  personal  delivery  of  packages,  they  are  required  to 
notify  the  consignee  of  the  arrival  of  the  package,  and  after  the 
consignee  has  had  reasonable  time  to  call  and  receive  the  same, 
the  carrier  will  become  liable  as  a  warehouseman — the  extra- 
ordinary liability  ceasing.  But  in  case  of  railroad  companies  and 
carriers  by  w^ater,  the  requirement  is  very  different.  The  express 
companies  generally  carry  small  packages  of  freight;  they  em- 
ploy agents  who  drive  their  wagons,  carry  their  goods  to  every 
part  of  the  city  and  deliver  them  to  the  several  consignees.  But 
the  railroad  or  steamship  is  confined  to  the  particular  limits  that 
the  water-course  or  track  has  made  for  them.  And  then,  too, 
they  generally  carry  heavier  freight,  and  it  would  not  be  prac- 
ticable, nor  has  it  ever  been  required,  that  they  should  make 
personal  delivery  to  the  consignee,  except  at  their  wharves  or 
freight  depots. 

As  to  just  what  is  required  of  them  the  authorities  are  not  all 
in  accord.  Some  of  the  courts  hold  that  the  railroad  or  steam- 
boat companies  are  not  bound  even  to  send  notice  to  the  consignee 
of  the  arrival  of  the  freight,  but  that  they  may  unload  it  into 
their  warehouses,  or,  if  in  car  lots,  place  the  cars  where  they 
may  be  conveniently  unloaded,  and  if  not  called  for  within  a 
reasonable  time  their  liability  as  carriers  ceases,  and  they  become 
liable  only  as  warehousemen;  while  other  courts  hold  that  it  is 
the  duty  of  the  carrier  to  give  the  consignee  notice  (sending 
notice  through  the  mail  is  generally  sufficient),  and  after  wait- 
ing a  reasonable  time  for  the  consignee  to  receive  the  goods  the 
extraordinary  liability  of  the  common  carrier  ceases,  and  he  be- 


608  CARRIERS.  [§   565. 

comes  liable  as  a  warehousman.    The  several  holdings  will  be  dis- 
cussed later. 

Express  Companies. 

§  565,  Requirements  as  to  delivery, — Express  companies  are 
required  to  make  personal  delivery  of  the  goods  intrusted  to 
them  for  carriage  except  in  cases  noted;  and  until  delivered  to 
the  consignee,  unless  a  reasonable  excuse  for  non-delivery  exists, 
the  company's  liability  as  a  common  carrier  continues.  What 
effort  the  agent  of  the  company  should  make  to  deliver  the  goods 
before  their  liability  as  a  common  carrier  will  be  terminated  and 
their  liability  as  warehouseman  commence  is  a  question  that  has 
been  very  much  discussed.  If  the  goods  are  addressed  to  the 
consignee  and  the  street  number  given,  it  is  the  duty  of  the 
carrier  to  look  for  him  there,  and  if  found  deliver  to  him  the 
goods ;  but  if  he  is  not  found,  or  if  no  street  number  is  given  nor 
sufficient  address,  in  such  case  it  is  the  duty  of  the  carrier  to 
make  reasonably  diligent  efforts  to  find  the  consignee  and  deliver 
to  him  the  goods.  No  fixed  legal  definition  can  be  laid  down  as 
to  what  is  reasonably  diligent  effort ;  it  would  vary  in  each  case, 
and  would  be  governed  by  circumstances.  It  can  only  be  said 
that  it  must  be  such  an  effort  as  a  reasonably  prudent  man  would 
make  under  just  such  circumstances  in  an  important  business 
affair  of  his  own.  It  therefore  follows  that  it  is  a  question  for 
the  jury.^^ 

12  In  Witbeck  v.  Holland,  45  N.  The  court  say:  "It  appeared  in 
Y.  13,  where  the  company  was  the  present  case  that  the  defen- 
held  not  to  have  exercised  rea-  dant  had  its  vehicles  by  which 
sonable  diligence  in  finding  the  they  carried  articles  to  the  con- 
consignee,  the  facts  proven  were  signees  in  the  city  of  Schenectady, 
that  the  agent  of  the  company  which  had  arrived  there  by  rail 
looked  in  the  directory  of  the  city  under  contracts  with  the  company 
and  did  not  find  the  name;  the  for  the  transportation.  This  is 
next  day  addressed  a  notice  to  the  usual  course  of  transacting 
Martin  Whitbeck  instead  of  Wit-  business  by  such  companies;  were 
beck.  Two  or  three  days  after  he  it  otherwise,  the  business  done  by 
inquired  of  two  men,  and  after-  these  companies  would  be  greatly 
wards  of  the  city  treasurer,  if  diminished,  as  it  would  be  equally 
they  knew  Martin  Whitbeck  (not  advantageous  in  many  cases  to 
Witbeck).  No  further  efforts  have  the  property  transported 
were  made;  the  package  was  de-  by  the  railroad  company.  When 
posited  in  the  company's  safe  the  defendant  received  the  pack- 
and  afterwards  taken  by  burglars.  age  from  the  Adams  Company  at 


§    567.]        TERMINATION  OF  LIABILITY  OF  WAREHOUSEMEN.  609 

§  566,  When  the  express  company  becomes  warehouseman. — 
When  the  liability  of  a  common  carrier  ceases  in  the  case  of  an 
express  company,  and  that  of  a  mere  warehouseman  takes  its 
place,  depends  entirely  upon  the  efforts  used  to  make  a  personal 
delivery  of  the  goods,  or  upon  a  refusal  of  the  consignee  to  re- 
ceive them  when  tendered  by  the  company.  The  prime  and 
paramount  duty  of  the  express  company  is  to  place  the  property 
intrusted  to  it  in  the  hands  of  the  consignee,  but  no  impossible 
or  unreasonable  requirements  will  be  laid  upon  the  company; 
and  so  when  the  agents  of  the  company  have  answered  all  rea- 
sonable requirements  as  to  delivering  the  property  and  have 
failed,  and  the  goods  are  still  in  their  possession,  their  extra- 
ordinary liability  as  insurers  will  cease;  they  will  be  permitted 
to  store  the  goods,  and  their  liability  will  be  that  of  a  ware- 
houseman required  to  exercise  ordinary  diligence. 

§  567.  Express  company's  liability  as  warehouseman. — In 
this  connection  it  may  be  said  that  there  are  at  least  two  occa- 
sions when  an  express  company's  liability  is  that  of  a  warenouse- 
man:  (1)  "When  the  goods  are  delivered  to  it,  but  not  for  im- 
mediate shipment;  something  remains  to  be  done  before  they  are 
sent  forward;  and  (2)  when  at  their  destination  they  cannot  for 
good  and  sufficient  reasons  be  delivered  to  the  consignee,  or  to 
any  person  authorized  to  receive  them." 

New  York,  coiisigned  to  Martin  inattentive  as  to  mistake  the  sur- 
Witbeck,  Schenectady,  it  became  name  of  the  consignee.  Although 
liable  as  carrier  for  its  carriage  the  package  was  addressed  to 
to  Schenectady  and  its  delivery  Witbeck,  all  its  Inquiries  were 
to  Witbeck,  there,  if  with  reason-  made  for  Whitbeck.  This  may 
able  diligence  he  could  be  found.  have  prevented  their  finding  him. 
The  performance  of  this  entire  It  further  appeared  that  its  in- 
service  was  contracted  for  by  its  quiries  were  confined  to  a  few 
receipt  so  addressed,  and  had  the  persons  in  the  vicinity  of  its 
defendant  received  it  from  the  place  of  business,  and  that  by 
plaintiff  at  New  York  and  given  these  it  obtained  information  of 
him  a  receipt  for  its  transporta-  other  persons  of  a  like  surname, 
tion,  the  obligation  to  make  per-  one  of  whom  was  the  father  of 
sonal  delivery  at  Schenectady  the  consignee.  Surely  inquiry 
would  have  been  incurred.  .  .  .  should  have  been  made  of  these 
The  diligence  which  the  law  re-  persons,  and  had  it  been  so  made, 
quired  of  the  defendant  was  such  delivery  would  have  been  made 
as  a  prudent  man  would  have  and  the  loss  would  never  have 
used  in  an  important  business  af-  occurred."  Brown  v.  Wier,  88  N. 
fair  of  his  own.  The  evidence  Y.  S,  479. 
shows  that  the  defendant  was  so  is  Barron  et  al.   v.   Eldridge   et 

39 


610 


CARRIERS. 


:§  568. 


§  568. 


Duty  of  express  companies  when  goods  are  re- 


fused by  consignee. — While  there  can  be  no  doubt  that  after  the 
goods  have  been  properly  tendered  to  the  consignee  and  he  has 
refused  to  receive  them,  the  status  of  the  express  company  is 


al.,  100  Mass.  455.  The  court  say: 
"The  responsibility  of  a  common 
carrier  for  goods  intrusted  to  him 
commences  when  there  has  been 
a  complete  delivery  for  the  pur- 
pose of  immediate  transportation. 
If,  without  putting  them  in  tran- 
sit, the  carrier,  for  his  own  tem- 
porary convenience,  places  them 
in  store,  still  the  liability  of  a 
carrier  attaches.  The  delivery 
must  be  for  immediate  trans- 
portation, and,  of  course,  it  can- 
not be  complete  if  anything  re- 
mains to  be  done  by  the  shipper 
before  the  goods  can  be  sent  on 
their  way.  If  by  the  usage  and 
course  of  business,  and  especially 
if  by  express  request,  the  ship- 
ment is  delayed  for  further  orders 
as  to  their  destination,  or  for  the 
convenience  of  the  owner,  then, 
during  the  time  of  such  delay, 
the  liability  is  that  of  warehouse- 
man. The  more  stringent  liability 
of  a  common  carrier  only  attaches 
when  the  duty  of  immediate 
transportation  arises.  It  then 
shifts  from  that  of  warehouse- 
man, although  the  goods  remain 
unmoved  in  the  storehouse. 
Whether  the  responsibility  be  in 
one  capacity  or  the  other  is  sel- 
dom a  matter  of  express  agree- 
ment between  the  parties.  It 
arises  out  of  the  relation  which 
the  parties  sustain,  and  the  duties 
which  the  law  imposes."  South- 
ern EJx.  Co.  V.  McVeigh,  20  Grat. 
(Va.)  264.  After  unsuccessful  ef- 
fort to  deliver  the  goods.  Hasse 
V.  Express  Co.,  94  Mich.  133.  In 
Marshall  et  al.  v.  Am.  Exp.  Co.,  7 


Wis.  1,  where  it  appeared  that  the 
express  company  tendered  a  pack- 
age received  for  a  bank  to  a  per- 
son in  the  bank  authorized  to  re- 
ceive It,  but  after  banking  hours, 
and  placed  his  refusal  upon  the 
ground  that  their  vault  was 
locked  and  the  keys  were  taken 
sway  by  the  cashier,  that  the 
agent  of  the  express  company 
placed  said  package  in  the  iron 
safe  of  the  company  and  securely 
locked  it,  and  that  it  was  after- 
wards burglarized  and  the  pack- 
age lost,  it  was  held  that  the  ex- 
press company  was  not  liable  as 
common  carriers.  The  court  say: 
"If  he  was  the  person  so  au- 
thorized by  the  consignee,  it  was 
wholly  immaterial  whether  the 
plaintiffs  had  notice  of  it  or  not. 
It  was  of  no  consequence  to  them 
who  such  person  was,  whether 
the  cashier,  the  teller  or  the 
porter.  And  most  certainly  the 
defendants  are  not  to  be  affected 
by  their  want  of  notice.  We  do 
not  wish  to  be  understood  as  de- 
ciding, or  intending  to  intimate, 
that  it  is  the  duty  of  the  bank 
to  keep  its  vaults  and  doors  open, 
and  persons  in  attendance,  for  the 
reception  of  such  packages,  after 
the  business  of  the  day  is  entirely 
closed.  That  question  is  not  be- 
fore us.  In  this  case  the  express 
messenger  gained  access  to  the 
counter  of  the  bank,  and  a  proi>- 
erly  authorized  agent  was  present 
to  receive  the  packages.  If  these 
views  are  correct,  it  follows  as  a 
necessary  consequence  that  the 
defendants'  duties  as  common  car- 


§    569.]        TERMINATION  OF  LIABILITY  OP  WAREHOUSEMEN.  611 

that  of  a  warehouseman,  the  question  as  to  what  further  duty 
devolves  upon  the  company  respecting  the  goods  and  the  parties 
is  one  of  importance.  The  goods  are  in  the  custody  of  the  ex- 
press company;  it  has  received  them  for  carriage  and  delivery 
to  the  consignee.  Sound  judgment  and  discretion  would  dictate, 
and  it  is  certainly  the  law,  that  the  company  would  be  under 
obligations  to  at  once  notify  the  consignor  of  the  refusal  of  the 
consignee  to  accept  the  goods.  Good  faith  and  fair  dealing,  as 
well  as  reasonable  diligence,  would  demand  this.  Ordinarily  the 
presumption  is  that  the  consignee  is  the  owner  of  the  goods; 
that  therefore  he  has  the  right  to  control  them ;  but  in  this  case, 
where  he  refuses  to  receive  them,  this  presumption  no  longer 
obtains ;  on  the  contrary,  in  such  case  the  carrier  would  be  bound 
to  presume  that  the  consignor  is  the  owner  of  the  property,  and 
therefore  the  carrier  must  look  to  him  for  further  directions  as 
to  what  shall  be  done  with  it ;  but  if  the  consignee  is  the  owner, 
and  the  carrier  has  knowledge  of  that  fact,  then  he  may  store 
the  goods  and  notify  the  consignee  of  that  fact,  and  further, 
that  they  are  stored  subject  to  his  order,  giving  him  notice  of 
the  place  where  they  can  be  found.^* 

§  569.  Goods   sent   C.   0.   D. — If  the   goods   are   sent 

C.  0.  D.,  that  is,  "collect  on  delivery,"  the  express  company  can 
only  terminate  its  liability  by  the  delivery  of  the  goods  to  the 
consignee,  or  making  the  necessary  effort  to  do  so,  and  collecting 
the  amount  claimed  by  the  accompanying  instructions  and  re- 
turning the  same  to  the  consignor.  In  such  case  it  is  the  duty 
of  the  company  on  receipt  of  the  goods,  to  at  once  notify  the 
consignee,  and  offer  to  deliver  to  him  the  goods  on  payment  of 
the  amount  named  in  the  instructions.  If  the  company  should 
deliver  the  goods  without  receiving  the  amount  of  the  collection, 
it  would  be  liable  to  the  consignor  in  that  sum.^^  But  where, 
by  the  terms  of  the  bill  of  lading,  the  goods  were  not  to  be  de- 
livered until  the  bill  should  be  produced  and  the  price  of  the 

riers   were   discharged,   and   their  i*  American,    etc.    Exp.    Co.    v. 

liabilities,  as  such,  at  an  end,  and.  Wolf,     79     111.     430.      Reasonable 

whatever    may    have    been    their  time   to    consignee,    etc..    Burr   v. 

character,   as   bailees,   afterwards,  Adams  Exp.  Co.,  58  Atl.  609. 

we     think    they     were     certainly  is  Murray  v.  Warner,  55  N.  H. 

liable   for    gross   negligence   only,  546,     20     Am.    Rep.     227;     United 

and  if  so,  that  matter  was  prop-  States  Exp.  Co.  v.  Keefer,  59  Ind. 

erly  submitted  to  the  jury,"  266. 


612  CARRIERS.  [§    571. 

goods  paid,  yet  where  the  consignor,  after  notice  that  the  goods 
had  been  delivered  without  the  production  of  the  bill,  and  that 
payment  had  not  been  made,  drew  a  draft  upon  the  consignee, 
took  an  acceptance  thereof  and  undertook  its  collection  through  a 
bank,  it  was  held  that  the  consignor  thereby  abandoned  the 
original  purpose  of  requiring  payment  on  delivery,  and  whether 
the  draft  is  collected  is  immaterial.^"  This  course  of  business 
is  sometimes  adopted  in  the  sending  of  freight  by  railroad  com- 
panies ;  instructions  being  written  in  the  contract  of  shipment  to 
deliver  the  freight  upon  payment  of  a  certain  amount  of  money. 
The  same  course  of  business  and  the  same  rules  of  law  are  ap- 
plicable in  such  cases  as  in  the  case  of  express  companies,  with  the 
exception  that  the  railroad  company  need  not  deliver  the  freight 
personally  to  the  consignee,  but  may  simply  give  him  notice  and 
collect  the  amount  when  the  freight  is  delivered  at  its  office.  The 
same  liability,  however,  would  be  incurred  by  the  railroad  com- 
pany as  is  incurred  by  the  express  company  in  such  like  cases. 

§  570.  Where  consignee  fails  to  receive  the  goods  or  refuses 
to  receive  them. — It  is  generally  understood  that  consignors 
of  C.  0.  D.  goods  expect  the  express  companies  to  hold  the  goods 
for  a  reasonable  time  if  necessary,  and  to  make  a  reasonable 
effort  to  collect  the  amount  due  and  deliver  the  goods,  even  after 
the  consignee  has  failed  to  take  the  goods  when  first  offered. 
Under  such  circumstances  there  is  nothing  to  be  done  by  the  com- 
pany but  to  store  the  goods  in  their  warehouse  and  for  a  time 
await  the  action  of  the  consignee.  In  such  case  the  law  will  not 
hold  the  company  to  the  extraordinary  liability  of  a  common 
carrier,  but  merely  as  a  warehouseman,  and  such  would  be  its 
liability  if  the  consignee  refused  the  goods ;  but  in  any  case  the 
carrier  should  notify  the  consignor  and  hold  the  goods  for 
further  instructions.^' 

§  571.  Right  to  inspect  the  goods  sent  C.  0.  D. — Ordi- 
narily the  relation  created  between  the  carrier  and  the  consignor, 
when  the  goods  are  forwarded  C.  0.  D.,  is  that  of  principal  and 
agent;  the  carrier  assuming  to  carry  the  goods  as  directed,  de- 
liver them  to  the  consignee,  collect  the  amount  demanded  in  the 

16  Southern  Ry.  Co.  v.  Kinchen,  Y.  344;  Zinn  v.  Steamboat  Co.,  49 

103   Ga.   186;    Rathbun   v.    Steam-  N.  Y.  442;  Express  Co.  v.  Darnell, 

boat  Co.,  76  N.  Y.  376.  31   Ind.   20;    Marshall   v.   Express 

IT  Hasse     v.     Express     Co.,     94  Co.,  7  Wis.  1. 
Mich.  133;  Weed  v.  Barney,  45  N. 


§    572.]        TERMINATION  OP  LIABILITY  OF  WAREHOUSEMEN.  613 

bill  and  return  it  to  the  consignor.  But  the  consignor  by  this 
method  will  not  be  allowed  to  obtain  an  unfair  advantage  over 
the  consignee  by  requiring  him  to  receive  and  pay  for  goods  he 
did  not  bargain  for.  And  so  it  has  been  held  that  the  carrier, 
unless  expressly  instructed  not  to  do  so,  may  afford  him  a  rea- 
sonable opportunity  of  ascertaining,  before  parting  with  his 
money,  if  the  package  contains  the  goods  he  ordered.  The  com- 
pany, however,  must  follow  the  instructions  of  the  consignor, 
and  when  an  inspection  was  allowed  contrary  to  instructions, 
and  the  consignee  without  cause  refused  to  take  the  goods  and 
pay  the  amount,  the  carrier  was  held  liable  to  the  consignor  for 
damages.  But  where  a  package  of  goods  was  forwarded  by  a 
carrier  to  be  paid  for  on  delivery,  it  was  held  that  the  consignee 
was  entitled  to  a  reasonable  opportunity  to  inspect  them  before 
he  accepted  them,  and  that  the  carrier  could  afford  him  reason- 
able facilities  for  doing  so  without  making  himself  chargeable 
for  the  price,  even  if  he  put  them  into  the  hands  of  the  con- 
signee for  that  purpose  and  recived  from  him  the  price  as  per- 
sonal security  to  the  carrier  that  the  goods  should  be  returned 
if  not  accepted  after  a  reasonable  opportunity  to  examine  them.^^ 
§  572.  Carrier  may  assist  in  preventing  fraud  on  the  part  of 
consignor. — This  manner  of  collection  for  goods  sent  by  ex- 
press, or  otherwise,  cannot  be  used  to  perpetrate  fraud  upon  a 
consignee;  and  so  it  has  been  held  that  the  carrier  will  be 
allowed  to  render  assistance  to  prevent  its  perpetration;  and 
when  it  clearly  appears  on  examination  of  the  goods  that  the 
consignor  is  undertaking  to  commit  a  fraud  upon  the  consignee, 
the  carrier  may  at  any  time  before  the  money  has  been  remitted 
return  the  amount  paid  to  the  consignee,  and  the  goods  to  the 
consignor;  indeed,  it  has  been  held  that  this  is  the  duty  of  the 
carrier.  "An  express  company  may  receive  a  parcel  to  be  de- 
livered to  the  consignee  only  on  payment  of  the  sum  directed  to 
be  collected  upon  it.  And  if  the  consignor  forbids  the  consignee 
to  inspect  the  contents  of  the  parcel  until  such  payment  is  made, 
it  is  the  duty  of  the  company  to  obey  the  direction.  But  if  the 
company  should,  in  violation  of  the  prohibition,  permit  an  ex- 
amination of  the  contents  of  the  parcel,  and  the  consignee  should 


18  Lyon  &  Co.  v.  Hill  &  Co.,  46  H.  31G;  Brand  v.  Weir,  57  N.  Y. 
N.  H.  49;  Wiltse  v.  Barnes,  46  S.  731,  27  Misc.  212;  Sloan  v. 
Iowa,  210;  Wilson  v.  Elliot,  57  N.      Railway  Co.,  126  N.  C.  487. 


614  CARRIERS.  [§    573. 

refuse,  without  cause,  to  receive  it  and  pay  the  sum  required,  it 
may  be  the  company  would  be  liable  to  the  consignor  for  dam- 
ages. It  is  unnecessary  to  consider  that  question  in  this  case. 
But  if  an  inspection  is  permitted  and  the  contents  are  found  to 
be  valueless,  it  may  be  safely  declared  that  the  company  would 
not  be  liable  in  damages  to  the  party  who  was  guilty  of  the  at- 
tempt to  defraud  the  consignee.  It  is  also  true  that  if  the  con- 
signee should  pay  the  charges,  and  then,  on  opening  the  parcel, 
should  find  the  contents  to  be  of  no  value,  he  would  be  entitled 
to  recall  the  money  paid  at  any  time  before  it  was  paid  over  to 
the  consignor.  The  agent  would  be  liable  to  refund,  if  the 
money  remained  in  his  hands  at  the  time  it  was  demanded  by 
the  consignee.  The  illegality  of  the  transaction  would  be  a  per- 
fect defense  to  the  company  against  the  consignors.  .  .  . 
There  could  be  no  recovery  by  the  consignors  against  the  express 
company  or  the  plaintifif.  This  fraud  intended  and  attempted 
was  a  perfect  answer  to  the  action."  Such  is  the  language  of 
the  court  in  Herrick  v.  Gallagher}^ 

Carriers  by  Water. 

§  573.  Termination  of  liability. — In  an  early  case  in  Massa- 
chusetts (1826),  Chickering  v.  Fowler,-^  it  was  held  that  "a 
promise  by  a  master  of  a  vessel  to  deliver  goods  to  a  consignee 
does  not  require  that  he  should  deliver  them  to  the  consignee  per- 
sonally, or  at  any  particular  wharf.  It  is  sufficient  if  he  leaves 
them  at  some  usual  place  of  unloading,  giving  notice  to  the  con- 
signee that  they  are  so  left.  If,  after  such  notice,  the  consignee 
refuses  to  receive  the  goods,  it  is  the  duty  of  the  master  to  take 
care  of  them  for  the  owner,  unless  the  consignee  is  under  an  obli- 
gation to  receive  them,  in  which  case  they  will  be  at  his  risk. ' ' 

Carriers  by  water  are  under  no  obligation  to  make  personal 
delivery  of  goods,  and  so  it  would  seem  that  their  liability  as  com- 
mon carriers  can  be  terminated  not  only  by  delivering  the  goods 
to  the  consignee,  or  the  person  entitled  to  them,  but  by  giving  to 
such  person  a  reasonable  notice  of  their  arrival  and  his  readiness 
to  deliver  them ;  and  after  failure  on  the  part  of  the  consignee  to 
collect  and  receive  them  and  pay  the  charges;  or  on  his  refusal 
to  accept;  or,  if  the  person  who  is  entitled  to  receive  the  goods 
cannot  be  found  by  the  carrier  after  a  reasonably  diligent  effort 

I9  60  Barb.   (N.  Y.)   566,  575.  204  pick.   (Mass.)  371. 


§    574.]        TERMINATION  OP  LIABILITY  OF  WAEEHOUSEMEN.  615 

has  been  made  to  find  him,  the  carrier's  extraordinary  liability 
as  an  insurer  would  terminate  and  he  would  be  held  to  the  liabil- 
ity of  a  warehouseman,  liable  only  for  ordinary  negligence  and 
required  to  exercise  ordinary  diligence.  If  the  consignee  refuses 
to  accept  the  goods,  or  cannot  be  found,  the  carrier  should  notify 
the  consignor,  for  in  such  case  it  would  be  presumed  that  the  con- 
signor is  the  owner  of  the  goods. 

§  574.  Carrier  must  be  reasonably  diligent  in  giving  notice 
to  consignee. — Carriers  of  whatever  kind  or  nature  are  required 
to  be  diligent  in  the  matter  of  giving  notice  to  the  consignee  of 
the  arrival  of  the  goods  at  their  destination,  and  their  readiness 
to  deliver  the  same,  and  if  negligent  in"  this,  and  the  goods  are 
lost  or  damaged,  the  carrier  would  be  liable.  Especially  must  the 
carrier  be  diligent  and  prompt  where  the  property  shipped  and 
received  is  perishable.  And  so  where  goods  were  shipped  in 
Pennsylvania  to  the  city  of  Chicago,  directed  to  the  consignee, 
whose  name  was  placed  upon  the  box,  and  also  the  number  of  his 
place  of  business,  and  on  their  arrival  by  water  a  letter  was 
mailed  to  him  without  giving  his  number,  and  in  consequence 
thereof  was  returned,  and  the  goods  were  destroyed  by  fire, 
it  was  held  * '  that  the  carrier  was  liable  to  the  owner  for  a  failure 
to  direct  the  notice  to  the  consignee  at  his  business  house. ' '  -^ 

21  In  Zinn  et  al.  v.  New  Jersey  want  of  reasonable  expedition  in 
Steamboat  Co.,  49  N.  Y.  442,  the  their  delivery,  after  arrival  at  the 
court  say:  "Common  carriers  as-  place  of  their  destination,  was  not 
sume  not  only  the  safe  carriage  controverted  upon  the  trial.  The 
and  delivery  of  property  to  the  defendant  in  this  action  was  not 
consignee,  but  also  that  merchan-  bound  to  deliver  the  merchandise 
dise  and  other  property  received  to  the  consignees  at  their  place  of 
by  them  for  transportation  shall  business.  A  delivery  or  offer  to 
be  carried  to  the  place  of  destina-  deliver  at  the  wharf  would  have 
tion  and  delivered  with  reason-  discharged  the  carrier  from  all 
able  dispatch;  and  for  any  unrea-  responsibility  as  such  carrier, 
sonable  delay,  either  in  the  trans-  Carriers  by  water  or  railroad  are 
portation  or  its  delivery  after  its  not  held  to  a  delivery  of  goods  to 
arrival  at  the  terminus  of  the  the  consignees  at  any  place  other 
route,  they  are  responsible.  Hand  than  at  the  wharf  of  the  vessel 
V.  Baynes,  4  Whart.  (Pa.)  204;  or  the  railroad  station,  and  a  no- 
Raphael  V.  Pickford,  6  Scott  Ch.  tice  to  the  consignee  of  the  ar- 
N.  R.  478;  Blackstock  v.  N.  Y.  &B.  rival  of  the  goods,  and  of  a  readi- 
R.  Co.,  20  N.  Y.  48;  Black  v.  Bax-  ness  to  deliver,  comes  in  place  of 
endale,  1  Exch.  410.  The  liability  a  personal  delivery,  so  far  as  to 
of  the  carrier  to  answer  for  the  release  the  carrier  from  the  ex- 
non-delivery     of     goods,     or     the  traordinary  and  stringent  liability 


616 


CARRIERS. 


:§  575. 


§  575.  Must  provide  suitable  place  for  landing  and  caring 
for  goods. — It  is  said  that  "by  the  general  usage  of  commercial 
aud  maritime  law  a  carrier  by  water  must  carry  from  port  to 
poi-t  or  from  wharf  to  wharf.  He  is  not  bound  to  deliver  goods 
at  the  warehouse  of  the  consignee ;  it  is  the  duty  of  the  consignee 
to  receive  his  goods  out  of  the  ship  or  upon  the  wharf. ' '  ^^ 


incident  to  that  class  of  bailees. 
Gibson  v.  Culver,  19  W.  R.  305; 
Fisk  V.  Newton,  1  Den.  45;  Fenner 
V.  Buff.  &  St.  L.  R.  Co.,  44  N.  Y. 
505.  If  the  consignee  is  present, 
the  goods  may  be  tendered  or  de- 
livered to  him  personally,  and  he 
ip  bound  to  remove  them  within 
a  reasonable  time.  If  he  is  not 
present,  he  is  entitled  to  reason- 
able notice  from  the  carrier  of 
their  arrival,  and  a  fair  oppor- 
unity  to  take  care  of  and  remove 
them.  If  the  consignee  is  un- 
known to  the  carrier,  the  latter 
must  use  proper  and  reasonable 
diligence  to  find  him;  and  if, 
after  the  exercise  of  such  dili- 
gence, the  consignee  cannot  be 
found,  the  goods  may  be  stored  in 
a  proper  place,  and  the  carrier 
will  have  performed  his  whole 
duty,  and  will  be  discharged  from 
liability  as  a  carrier.  But  for 
want  of  diligence  in  finding  the 
consignee  and  giving  notice  of  the 
arrival  of  the  goods,  the  carrier 
is  liable  for  the  damages  resulting 
from  a  delay  in  the  receipt  of  the 
goods  by  the  consignee  occasioned 
by  such  want  of  diligence.  He 
can  only  relieve  himself  from 
liability  by  storing  the  goods, 
after,  by  the  use  of  reasonable 
diligence,  he  is  unable  to  find  the 
consignee.  Witbeck  v.  Holland, 
45  N.  Y.  13.  A  common  carrier  has 
not  performed  his  contract  as  car- 
rier until  he  has  delivered  or  of- 
fered to  deliver  the  goods  to  the 
owner,  or  done  what  the  law  es- 


teems equivalent  to  a  delivery. 
Smith  V.  Nassau  &  Lowell  R.  Co., 
7  Foster  (N.  H.),  86;  Price  v. 
Powell,  3  Comst.  322.  When  the 
consignee  is  unknown  to  the  car- 
rier, a  due  effort  to  find  him  is  a 
condition  precedent  to  a  right  to 
warehouse  the  goods,  and  as  notice 
to  the  consignee  takes  the  place 
of  a  personal  delivery  of  the  goods, 
and  as  a  due  and  unsuccessful  ef- 
fort to  find  the  consignee  will 
alone  excuse  the  want  of  such  no- 
tice,, it  follows  that  if  a  reason- 
able and  diligent  effort  is  not 
made  to  find  the  consignee,  the 
carrier  is  liable  for  the  conse- 
quence of  the  neglect.  What  is  a 
due,  a  reasonable  effort,  and  what 
is  proper  and  reasonable  diligence, 
depends  necessarily  very  much 
upon  the  circumstances  of  each 
case,  and,  in  the  nature  of  things, 
is  a  question  of  fact  for  the  jury, 
and  not  of  law  for  the  court. 
What  would  be  reasonably  suf- 
ficient in  one  place  might  be  en- 
tirely inadequate  and  InsuflBcient 
in  another,  and  the  extent  and 
character  of  the  inquiries  to  be 
made,  in  the  exercise  of  a  reason- 
able diligence  on  the  part  of  the 
carrier,  cannot  be  regulated  or 
prescribed  by  any  fixed  standard, 
as  the  standard  must  shift  with 
the  varying  circumstances  of  each 
case."  Westchester  &  Phila.  R. 
Co.  V.  McElwee,  67  Pa.  St.  211. 

22  Dibble   v.   Morgan,    1   Woods, 
406. 


§    575.]        TERMINATION  OF  LIABILITY  OF  WAREHOUSEMEN.  617 

While  this  may,  under  certain  conditions  and  circumstances,  be 
true,  there  are  times  and  conditions  when  the  consignee  cannot 
be  notified  in  time ;  when  the  ship  must  be  unladen  before  a  rea- 
sonable time  can  be  given  the  consignee  to  appear  and  receive  his 
goods;  and  it  is  held,  and  there  is  no  serious  opposition  to  the 
holding,  that  the  ship's  master  cannot  terminate  the  liability  of 
the  ship's  owner  as  a  common  carrier  by  unloading  the  goods 
upon  the  wharf  and  leaving  them  there,  unless  it  is  done  in  com- 
pliance with  a  clearly-established  course  of  business  betv/een  the 
parties  in  relation  to  the  mode  of  delivering  the  goods.-^  "A  dis- 
charge from  the  vessel  at  a  proper  place,  seasonable  hour,  and 
upon  due  notice  to  the  consignee,  does  not  discharge  the  carrier 
from  all  responsibility  for  the  safety  of  the  goods.  It  may,  under 
some  circumstances,  be  regarded  as  a  delivery  to  the  consignee, 
and  a  performance  of  the  contract  of  affreightment,  so  as  to  dis- 
charge the  shipowner  from  the  stringent  liability  of  a  carrier; 
but  such  cases  are  exceptional,  and  as  a  rule,  if  for  any  reason 
the  consignee  does  not  appear  to  claim  the  goods,  or  does  not 
receive  them,  it  is  the  duty  of  the  carrier  to  provide  a  proper 
place  of  deposit,  or  in  case  of  imported  goods,  subject  to  duty,  to 
see  that  they  are  in  proper  custody.  The  general  rule  is,  and  to 
it  there  are  no  recognized  exceptions,  if  the  consignee  is  unable 
or  refuses  to  receive  the  goods,  the  carrier  is  not  at  liberty  to  leave 
them  on  the  wharf,  but  it  is  his  duty  to  take  care  of  them  for  the 
owner,  ,  ,  ,  It  follows  that  until  this  is  done  the  liability  of 
the  carrier  continues.  If  it  be  conceded  that  a  carrier  by  water 
may  discharge  himself  from  liability  by  delivering  merchan- 
dise upon  a  wharf,  with  notice  to  the  consignee,  the  latter  is  en- 
titled to  a  reasonable  time  to  remove  them,  and  they  are  at  the 
risk  of  the  carrier  until  a  reasonable  time  for  such  removal  has 
elapsed ;  and  a  right  to  put  the  goods  in  store  for  the  consignee 
does  not  exist  until  the  latter  has  had  a  reasonable  time  for  their 
removal."  This  is  the  language  of  the  court  in  Redmond  v. 
Liverpool,  etc.  Steamboat  Co.^* 

23  story  on  Bailm.,  sec.  545;  Os-  by     the     consignee,     the     carrier 

trander  v.  Brown,  15  Johns,    (N,  should    put    them    in    a    place    of 

Y.)   39;  Fisk  v.  Newton,  1  Denio,  safety,  and  when  he  has  so  done 

45;   2  Kent's  Com.  605.     In  Rich-  he  is  no  longer  liable  on  his  con- 

ardson  et  al.  v,  Goddard  et  al,,  23  tract  of  affreightment." 

How.    (U.   S.)    28,  the  court  say:  2446  N.  Y.  578,  583. 
"When  the  goods  are  not  accepted 


618  CARRIERS.  [§    577. 

It  has  been  held,  and  it  seems  to  be  in  harmony  with  the  weight 
of  authority  upon  the  subject,  "that  where  delivery  cannot  be 
made  at  the  point  of  destination,  such  prudent  care  of  the  goods 
and  their  diligent  and  safe  delivery,  with  notice  to  the  consignee 
or  owner,  as  best  comports  with  the  interest  of  the  owner  ac- 
cording to  the  circumstances,  will  excuse  the  carrier;  but  it  de- 
volves upon  the  carrier  to  allege  and  prove  such  matter  of  ex- 
cuse. "  '^  So  it  would  appear  that  not  only  is  the  master  of  the 
ship,  or  the  ship's  owner,  bound  to  give  notice,  but  he  must  give 
reasonable  notice  so  that  the  consignee  can  have  reasonable  time 
to  obtain  the  goods.  And  then,  too,  the  goods  must  be  in  a  suit- 
able condition  for  removal;  so  separated  from  the  mass  of  their 
goods  unloaded  that  the  consignee  may  select  them.  It  would 
follow,  therefore,  that  the  ship's  owner  must  provide  a  suitable 
place  for  landing  and  taking  care  of  the  goods  he  carries  until 
they  can  be  delivered  to  the  consignee. 

§  576.  Notice  must  be  actual,  and  for  a  removal  of 

goods  at  a  proper  time,  if  time  fixed. — The  notice  of  the  arrival 
of  the  goods,  and  of  the  readiness  of  the  carrier  to  deliver  them, 
must  be  an  actual  notice  to  the  owner  or  consignee ;  it  would  not 
be  sufficient  to  give  a  public  notice,  as  by  printing  in  a  newspaper 
or  posting  in  a  public  place.  Then,  too,  the  time  for  removal 
must  be  a  proper  time ;  at  some  time  during  business  hours,  and 
not  at  night  or  some  unusual  time,  nor  upon  a  Sunday  or  na- 
tional holiday,  like  the  Fourth  of  July,  or  Christmas  or  New 
Year's  day. 

§  577.  Contract — Usage — Course  of  dealing. — The  ne- 
cessity of  giving  notice  of  the  arrival  of  the  goods  may  be  dis- 
pensed with  by  contract.  When  this  is  done  the  consignee  or 
owner  must  wait  for  the  arrival  of  the  ship  so  that  he  can  receive 
the  goods  from  her  port.  But  it  is  said  that  if  in  such  case  the 
master  is  guilty  of  gross  negligence  and  exposes  the  goods  to 
peril,  he  would  still  be  liable.  Such  contracts,  too,  will  be  strictly 
construed  against  the  carrier.^®  "It  is  a  pervading  rule  of  the 
maritime  law  that  the  master  of  a  vessel  intrusted  as  carrier  with 
the  custody  of  the  property  of  a  distant  oM^ner  is  bound  to  ex- 
ercise reasonable  care  of  the  goods  until  delivery  pursuant  to  the 
contract.     This  duty  of  reasonable  care  for  the  preservation  of 

25  Green,   etc.   Nav.   Co.   v.   Mar-  ar,  The    Boskenna    Bay,    22    Fed- 

shall,    48    Ind.    596;    Robinson    v.       662;  Hutch,  on  Car.,  §  366a. 
Chittendon,  14  N.  Y.  Super.  133. 


§    578.]        TERMINATION  OP  LIABILITY  OF  WAREHOUSEMEN.  619 

the  property  from  loss  arises  in  all  situations  and  in  all  emergen- 
cies. It  is  in  accordance  with  this  general  obligation  that,  in  the 
absence  of  any  special  stipulations  in  the  bill  of  lading,  if  a  cargo 
be  duly  landed,  on  notice  to  the  consignee  at  the  port  of  destina- 
tion, and  the  consignee  fails  to  appear  or  refuses  to  take  the 
goods,  the  master  cannot  abandon  them,  but  is  responsible  for 
reasonable  care  of  the  goods,  and  must  either  hold  them  as  bailee 
or  store  them  on  the  shipper's  account.  "Where  the  stipulations  of 
the  bill  of  lading  require  the  consignee  to  be  present  and  receive 
the  goods  as  soon  as  the  vessel  is  ready  to  unload,  and  that  they 
shall  be  at  the  consignee's  risk  as  soon  as  landed  on  the  dock,  and 
the  consignee  is  duly  notified,  and  attends  in  order  to  accept  the 
goods  as  landed,  and  takes  more  or  less  charge  of  them,  the  stipu- 
lation is  held  to  exempt  the  ship  from  subsequent  loss  or  dam- 
age. In  such  cases,  as  the  consignee  has  due  notice  of  discharge, 
and  accepts  the  goods,  the  duty  of  protecting  the  property  is  cast 
by  the  contract  upon  him,  and  the  ship  is  relieved.  ...  As 
respects  all  such  stipulations  inserted  by  the  carrier  for  his  ex- 
emption from  liability,  the  ordinary  rule  is  that  they  are  to  be 
strictly  construed.  They  are  not  to  be  extended  by  implication 
beyond  the  fair  import  or  necessary  meaning  of  their  terms. 
Still  less  do  they  exempt  from  negligence  or  from  the  duty  of  or- 
dinary care  imposed  by  law  upon  the  carrier,  unless  that  be  ex- 
pressly stated,  or  unless  the  stipulations  can  otherwise  have  no 
effect  at  all.  Thus,  a  general  provision  that  goods  shall  be  car- 
ried at  the  'owner's  risk'  does  not  excuse  the  carrier  from  the 
duty  of  ordinary  care.  It  is  well  settled  in  the  federal  courts 
that  all  stipulations,  indirect  as  well  as  direct,  inserted  by  the 
carrier  for  exemption  from  loss  by  his  own  negligence,  are 
void.  "2^ 

§  578.  Usage — Course  of  dealing. — If  there  be  a  usage 

well  understood  and  acted  upon  by  the  carrier  and  the  consignee 
to  an  extent  that  it  may  be  said  that  with  the  parties  interested 
it  has  come  to  be  a  usual  course  of  business  to  receive  the  goods 
at  the  dock  on  the  arrival  of  the  ship  without  notice,  no  doubt 
such  usage  and  course  of  business  would  excuse  the  carrier.  As, 
for  example,  where  the  consignee  has  his  place  of  business  near 
the  dock  or  landing  of  the  vessel,  and  has  been  in  the  habit  of 
receiving  his  freight  there  at  her  dock  for  a  long  time,  so  that  it 

27  Dixon  V.  The  Surrey,  26  Fed.  791. 


620  ■  CARRIERS.  [§   579. 

may  be  said  that  it  has  become  to  be  a  long  continued  course  of 
business.  In  such  case  the  requirement  that  the  carrier  should 
give  him  notice  would  be  waived.  And  where  it  appeared  that 
it  had  been  the  long  continued  practice  of  a  manufacturing  com- 
pany to  ship  its  goods  daily  by  a  regular  line  of  steamboats  con- 
signed to  its  agent  for  sale,  and  it  had  been  part  of  the  regular 
routine  of  business  of  the  agent,  without  notice,  to  call  for  and 
receive  the  goods  upon  their  arrival  each  day  at  the  carrier's 
wharf  at  the  place  of  destination,  and  to  remove  them,  a  specific 
notice  from  the  carrier  of  the  arrival  of  each  parcel  is  not  nec- 
essary. The  duty  of  the  carrier,  as  such,  is  performed  when  the 
goods  are  landed  at  the  accustomed  place  and  the  consignee  has 
had  a  reasonable  time  to  remove  them.  But  if  the  goods  are  re- 
ceived upon  a  holiday,  and  it  has  been  the  usage  for  the  consignee 
not  to  receive  goods  upon  those  days,  he  is  entitled  to  a  reason- 
able time  after  that  day  to  remove  them.^^ 

§  579.  Consignee  cannot  prolong  liability  as  carrier. — The 
consignee  cannot  prolong  the  liability  of  the  common  carrier  by 
inattention  to  the  notice  that  his  goods  have  arrived  and  await 
delivery.  It  is  his  duty  to  at  once  attend  to  the  matter  and,  at 
least  in  a  reasonable  time,  call  for  the  goods,  pay  the  charges  and 
take  them  away ;  or  if  there  are  reasons  why  he  should  not  do  so, 
inform  the  carrier  of  the  reason.  And  where  the  car  containing 
the  goods  arrived  at  the  carrier's  station,  and  the  consignee  re- 
ceived notice  of  the  arrival  of  the  goods  the  following  morning 
about  nine  o  'clock,  and  at  ten  o'clock  sent  a  truck  for  a  load  of  the 
goods,  which  were  unloaded  at  consignee 's  place  of  business  about 
three  o  'clock  in  the  afternoon,  the  evidence  showing  that  he  might 
have  taken  away  two  more  loads  before  the  hour  of  closing  with 
one  truck,  the  court  in  its  opinion  said:  "The  plaintiffs  seek  to 
hold  the  defendant  to  a  strict  liability  as  insurer  of  the  goods. 
Asking  that  so  rigid  a  rule  be  applied  to  the  defendant,  it  is  just 
that  the  plaintiffs  in  turn  be  held  to  prompt  and  diligent  action. 
A  consignee  cannot,  after  he  has  notice  of  the  arrival  for  him  of 
property,  defer  taking  it  away  while  he  attends  to  his  other  affairs. 
He  may  not  thus  prolong  the  time  during  which  the  carrier  shall 
remain  liable  as  an  insurer.  That  would  be  to  make  the  carrier  a 
mere  convenience  for  the  consignee,  without  consideration  of  any 
kind  to  the  carrier,  and  yet  resting  under  a  great  risk.    So  much 

28  Russell  Mfg.  Co.  V.  N.  H.   S.  Co.,  50  N.  Y.  121. 


§    581.]        TERMINATION  OF  LIABILITY  OP  WAREHOUSEMEN,  621 

time  as  the  consignee  after  notice  gives  to  his  other  business,  to 
the  neglect  of  taking  charge  of  his  property  and  removing  it 
from  the  custody  of  the  carrier,  cannot  be  allowed  to  him  in 
estimating  what  is  a  reasonable  time  for  him  in  which,  after 
notice  of  arrival,  to  take  delivery  of  his  goods.  He  is  not  to  be 
compelled  to  leave  all  other  business  to  take  his  goods  from  the 
hands  of  the  carrier.  He  may  attend  first  to  whatsoever  demand 
of  his  business  he  deems  the  most  urgent  or  the  most  profitable ; 
but  he  cannot  do  this  at  the  hazard  and  expense  of  the  carrier. 
It  is  the  duty  of  the  carrier  to  give  notice  of  arrival;  it  is  the 
duty  of  the  consignee  at  once,  and  with  diligence,  to  act  upon  this 
notice  and  to  seek  delivery,  and  to  continue  until  delivery  is 
complete.  Either  may  neglect  this  his  duty;  but  then  the  con- 
sequence of  neglect  must  be  borne  by  him. ' '  ^® 

Carriers  by  Railroad. 

§  580.  Termination  of  liability. — The  same  rigid  rule  applies 
to  common  carriers  by  railroad  that  applies  to  all  others.  They 
are  bound  to  deliver  the  freight  to  the  consignee,  or  the  person 
lawfully  entitled  to  receive  it,  and  will  not  be  excused  for 
misdelivery.  "There  must  be  an  actual  delivery  to  the  proper 
person."  But  the  railroad  company,  like  the  carrier  by  water, 
is  not  bound  to  deliver  the  goods  personally  to  the  consignee  as 
is  the  express  company,  for  reasons  which  we  have  before  stated. 
The  question  that  has  elicited  a  great  deal  of  interest  in  this 
country,  and  one  as  to  which  the  authorities  are  not  in  harmony, 
is,  what  must  the  railroad  carrier  do  upon  the  arrival  of  the 
freight  at  its  destination  in  order  to  terminate  its  liability  as  a 
common  carrer  ?  Under  what  circumstances  can  it  cease  to  be  an 
insurer  and  become  simply  a  warehouseman  of  whom  the  con- 
signee or  owner  can  require  only  ordinary  diligence  and  hold  it 
only  for  ordinary  negligence? 

§  581.  Three  distinct  views. — Upon  this  question  there  are 
in  this  country  three  distinct  holdings,  each  giving  strong  rea- 
sons for  their  opinions  and  each  supported  by  the  strongest  jur- 
ists of  our  courts.  (1)  The  first,  led  by  the  Massachusetts  court, 
holds  ' '  that  when  the  transit  is  ended,  and  the  carrier  has  placed 
his  goods  in  the  warehouse  to  await  delivery  to  the  consignee,  his 

29  Hedges  et  al.  v.  H.  R.  R.  Co.,  49  N.  Y.  223,  226. 


622 


CARRIERS. 


[§•  582. 


liability  as  carrier  is  ended  also,  and  he  is  responsible  as  ware- 
houseman only. ' '  2° 

(2)  The  second  class,  led  by  the  New  Hampshire  court,  holds 
"that  merely  placing  the  goods  in  the  warehouse  does  not  dis- 
charge the  carrier,  but  that  he  remains  liable  as  such  until  the 
consignee  has  had  reasonable  time  after  their  arrival  to  inspect 
and  take  them  away  in  the  common  course  of  business."  ^^ 

(3)  The  third  class  holds  that  the  liability  of  the  carrier  con- 
tinues until  the  consignee  has  been  notified  of  the  receipt  of  the 
goods,  and  has  had  reasonable  time  in  the  common  course  of 
business  to  take  them  away  after  such  notification.^- 

§  582.  (1)  The  Massachusetts  rule.— Some  of  the  ablest 
courts  of  the  Union  support  this  rule,  and  their  opinions  are 
learned  and  interesting.  In  Massachusetts  the  court  thoroughly 
discuss  the  doctrine  in  the  case  of  Norway  Plains  Co.  v.  Boston, 


30  Thomas  v.  Boston  R.  Co.,  10 
Met.  472,  43  Am.  Dec.  444;  Nor- 
way Plains  Co.  v.  Boston,  etc.  R. 
Co.,  1  Gray,  263,  61  Am.  Dec.  423; 
Rice  V.  Boston  R.  Corp.,  98  Mass. 
212,  and  numerous  other  decisions 
found  in  the  state.  See  100  Mass. 
455,  145  Mass.  132,  and  others. 
Among  some  of  the  states  follow- 
ing the  Massachusetts  rule,  as  it 
is  called,  may  be  mentioned  Illi- 
nois: Gregg  V.  Illinois  Cent.  R. 
Co.,  147  111.  550;  Chicago,  etc.  Co. 
V.  Jenkins,  103  111.  599,  and  many 
others.  Indiana:  Cincinnati,  etc. 
R.,  Co.  V.  McCool,  26  Ind.  140. 
Icwa:  Mohr  v.  Chicago,  etc.  R. 
Co.,  40  Iowa,  579,  and  other  cases. 
Georgia:  Ga.  etc.  R.  Co.  v. 
Thompson,  86  Ga.  327,  and  cases 
cited.  See  also  Georgia  Code,  sec. 
2070.  Missouri:  Gashweiler  v. 
AVabash  R.  Co.,  83  Mo.  112,  and 
many  other  cases.  North  Caro- 
lina; South  Carolina;  Pennsyl- 
vania: McCurty  v.  New  York,  etc. 
Co.,  30  Pa.  St.  447.  Tennessee: 
East  Tenn.,  etc.  R.  Co.  v.  Kelly, 
91  Tenn.   669,  and  other  cases. 

31  Moses  V.  Boston  &  M.  R.  Co., 


32  N.  H.  523.  This  is  perhaps  the 
first  case  that  took  issue  with  the 
Massachusetts  rule.  As  following 
this  rule  may  be  noted  Alabama, 
Vermont,  Wisconsin,  Kentucky, 
New  Jersey,  Louisianna  and  Kan- 
sas. 

32  Holding  to  this  doctrine  are 
the  courts  of  New  York:  McDon- 
ald V.  Western  R.  Co.,  34  N.  Y. 
497.  See  Angell  on  Carriers,  sec. 
313.  See  also  a  long  list  of  cases 
upon,  'these  several  classes  col- 
lected from  New  York  and  other 
states.  5  Am.  &  Eng.  Ency.  of 
Law  (2d  ed.),  266.  Michigan.' 
McMillan  v.  Michigan  Southern 
R.  Co.,  16  Mich.  79,  93  Am.  Dec. 
208;  Buckley  v.  Great  Western  R. 
Co.,  18  Mich.  121;  Feige  v.  Mich. 
Cent.  R.  Co.,  62  Mich.  1;  Black  v. 
Ashley,  80  Mich.  90.  Minnesota: 
Kirk  V.  Chicago,  etc.  Co.,  39  Minn. 
161,  and  cases  cited.  Nebraska: 
Burlington,  etc.  Co.  v.  Arms,  13 
Neb.  69.  Ohio:  Lake  Erie,  etc.  Co. 
V.  Hatch,  52  Ohio  St.  408.  Texas 
has  a  statute  regulating  liability. 
The  English  courts  hold  with  the 
third  class. 


§    582.]        TERMINATION  OF  LIABILITY  OF  WAREHOUSEMEN.  623 

etc.  R.  Co.,  above  cited,  and  again  it  receives  attention  in  the 
case  of  Thomas  v.  Boston,  etc.  B.  Corp.,  already  cited.  In  the  lat- 
ter case,  following  the  same  theory  and  doctrine  of  the  former, 
the  court  proceed  upon  the  principle  that  the  transportation  and 
the  storage  of  goods  must  depend  upon  contracts  of  very  differ- 
ent character,  and  that  although  one  person  or  company  might 
render  both  services,  yet  the  two  contracts  are  different  because 
the  liabilities  attending  each  are  not  the  same.  The  court  say : 
"The  proprietors  of  a  railroad  transport  merchandise  over  their 
road,  receiving  it  at  one  depot,  or  place  of  deposit,  and  delivering 
it  at  another  agreeably  to  the  direction  of  the  owner  or  consignor. 
But  from  the  very  nature  and  peculiar  construction  of  the  road 
the  proprietors  cannot  deliver  merchandise  at  the  warehouse  of 
the  owner,  when  situated  off  the  line  of  the  road,  as  a  common 
wagoner  can  do.  .  .  .  They  can  deliver  it  only  at  the  ter- 
minus of  the  road,  or  at  the  given  depot  where  goods  can  be  safely 
unloaded  and  put  in  a  place  of  safety.  After  such  delivery  at  a 
depot  the  carriage  is  complete.  But  owing  to  the  great  amount 
of  goods  transported,  and  belonging  to  so  many  different  persons, 
and  in  consequence  of  the  different  hours  of  arrival,  by  night  as 
well  as  by  day,  it  becomes  equally  convenient  and  necessary,  both 
for  the  proprietors  of  the  road  and  the  owner  of  the  goods,  that 
they  should  be  unloaded  and  deposited  in  a  safe  place,  protected 
from  the  weather  and  from  exposure  to  thieves  and  pilferers ; 
and  where  such  suitable  warehouses  are  provided,  and  the  goods 
which  are  not  called  for  on  their  arrival  at  the  place  of  destina- 
tion are  unloaded  and  separated  from  the  goods  of  other  persons 
and  stored  safely  in  such  warehouses  or  depots,  the  duty  of  the 
proprietors  as  common  carriers  is,  in  our  judgment,  terminated; 
they  have  done  all  they  agreed  to  do;  they  have  received  the 
goods,  have  transported  them  safely  to  the  place  of  delivery,  and, 
the  consignee  not  being  present  to  receive  them,  have  unloaded 
them  and  have  put  them  in  a  safe  and  proper  place  for  the  con- 
signee to  take  them  away,  and  he  can  take  them  at  any  reason- 
able time.  The  liability  of  the  common  carrier  being  ended, 
the  proprietors  are  by  force  of  law  depositaries  of  the  goods  and 
are  bound  to  reasonable  diligence  in  the  custody  of  them,  and 
consequently  are  only  liable  to  the  owners  in  case  of  a  want  of 
ordinary  care." 

§  583.  (2)  The  New  Hampshire  rule. — The  New  Hampshire 
!rule,  or  the  second  class,  was  very  learnedly  discussed  in  the 


624  CAKRIERS.  [§   583. 

case  of  Moses  v.  Boston,  etc.  B.  Co.,  above  cited.  The  courts 
holding  to  this  doctrine  proceed  upon  the  theory  that  the  con- 
si^ee  must  have  had  notification  from  the  consignor  that  the 
goods  were  shipped,  and  that  it  becomes  his  duty  to  take  notice 
of  the  general  course  of  business  of  the  carrier;  the  time  of  de- 
parture and  arrival  of  trains,  and  when  the  freight  may  be  ex- 
pected; holding  that  the  consignee  should  be  given  a  reasonable- 
time  after  it  has  arrived  in  which  to  receive  it  from  the  carrier. 
These  courts  hold  that  even  while  the  freight  is  being  unloaded, 
and  while  it  is  in  the  hands  of  the  common  carrier,  the  same  rea- 
sons exist  for  holding  the  common  carrier  to  the  extraordinary 
liability  that  existed  during  the  time  it  was  in  transit.  And  in 
the  case  cited  the  court  say:  "But  while  it  is  in  the  process  of 
unloading,  and  afterwards  while  awaiting  removal,  it  must  be 
protected  from  the  weather  and  from  depredation.  Freight  is 
brought  over  the  road  at  all  hours,  by  night  as  well  as  by  day, 
and  the  trains  must  necessarily  be  more  or  less  irregular  in  the 
hours  of  their  arrival.  It  cannot  be  required  of  the  consignee 
to  attend  at  the  precise  moment  when  his  goods  arrive,  to  re- 
ceive and  take  care  of  them,  and  the  company  cannot  discharge 
themselves  from  responsibility  by  leaving  them  in  an  exposed 
condition  in  the  open  air.  Until  the  goods  have  passed  out  of  their 
custody  and  control  into  the  hands  of  the  proper  person  to  receive 
them,  they  have  a  duty  to  perform  in  the  preservation  and  pra 
tection  of  the  property,  even  after  their  responsibility  as  com- 
mon carrier  is  at  an  end. ' '  And  again :  ' '  The  same  persons — the 
servants  of  the  company — continue  in  the  exclusive  possession  and 
control  of  the  goods  as  when  they  were  on  their  transit,  and  they 
are  equally  shut  up  from  the  observation  and  oversight  of  all 
others.  The  consignee  has  had  no  opportunity  to  know  that  they 
have  arrived,  and  in  what  condition,  and  is  in  no  better  situation 
to  disprove  the  fact,  or  to  question  any  account  the  servants  of 
the  company  having  them  in  charge  may  choose  to  give  of  what 
may  happen  to  them  after  they  are  so  removed  from  the  cars,  or 
what  has  happened  prior  thereto,  than  before.  If  purloined,  de- 
stroyed or  damaged  by  their  fraud  or  neglect  subsequently  ta 
their  removal  and  before  he  can  have  had  the  opportunity  to 
come  for  them,  he  is  left  to  precisely  the  same  proof  as  if  the 
larceny  or  injury  had  occurred  while  they  were  actually  in 
transitu." 


§    585.]        TERMINATION  OF  LIABILITY  OP  WAREHOUSEMEN.  625 

§  584.  (3)  The  rules  demanding  notice  to  consignee. — But 

the  reasoning  of  these  courts  does  not  seem  to  be  satisfactory. 
Indeed,  the  very  reasoning  of  the  New  Hampshire  court  and  of 
those  which  follow  that  class  of  holdings  would  seem  to  be  an 
argument  in  favor  of  the  rule  that  justice  and  fair  dealing  de- 
mand that  the  consignee  should  have  notice  of  the  arrival  of  the 
goods,  and  of  the  readiness  of  the  carrier  to  deliver  them.  And  it 
would  seem  in  these  days,  the  carrying  of  goods  over  long  dis- 
tances, and  the  great  increase  in  railroads  and  freightage,  would 
determine  the  necessity  of  the  rule  that  the  consignee  should  re- 
ceive notice  of  the  arrival  of  the  property.  This  rule  is  very  ably 
discussed  by  Judge  Cooley  in  McMillan  v.  Mich.  Cent.  By.  Co.^^ 
In  the  course  of  the  opinion  the  judge  says:  "The  man  who  sends 
his  goods  by  railroad,  and  who  desires  to  receive  them  as  soon  as 
they  reach  their  destination,  has  commonly  no  design  to  employ 
the  railroad  company  in  any  other  capacity  than  that  of  carrier. 
If  any  other  relation  than  that  is  formed  between  them,  it  is  one 
that  the  law  forms  upon  considerations  springing  from  the  usages 
of  business,  and  having  reference  to  the  due  protection  of  the  in- 
terests of  both.  The  owner  wants  storage  only  until  he  can  have 
time  to  remove  the  goods ;  and  the  warehousing  is  only  incidental 
to  the  carrying.  Payment  for  the  transportation  is  payment  also 
for  the  incidental  storage.  The  owner  has  been  willing  to  trust 
to  the  company  as  carriers,  because  the  law  makes  them  insurers : 
but  he  might  not  be  willing  to  trust  them  as  warehousemen  under 
a  liability  so  greatly  qualified,  and  in  a  trust  which  implies  gen- 
erally a  considerable  degree  of  personal  confidence." 

§  585.  What  will  excuse  delivery. — The  carrier  will,  of  course, 
be  excused  from  delivering  the  goods  when  they  have  been  lost 
in  transit  by  reason  of  the  happening  of  an  event  which  excuses 
the  carrier  from  liability;  as  where  the  loss  was  occasioned  by 
the  act  of  God,  the  public  enemy,  or  as  the  result  of  the  act  of 
the  shipper,  the  inherent  nature  of  the  goods,  or  from  public  au- 
thority. These  have  all  been  fully  discussed.  The  carrier  will 
also  be  excused  when  the  goods  have  been  stopped  in  transit  by 
the  vendor  exercising  his  legal  right  to  do  so,  and  claiming  the 
goods. 

§  586.  Stoppage  in  transitu. — Stopping  the  goods  in  transit 
is  a  privilege  given  to  the  vendor  under  certain  circumstances, 

83  16  Mich.  79. 
40 


626  CARRIERS.  [§   588. 

and  in  some  ways  is  similar  to  the  vendor's  lien.  Indeed,  it  has 
been  said  that  it  is  nothing  more  than  an  extension  of  the  ven- 
dor's common-law  lien  upon  goods  for  his  price,  and  has  no  effect 
of  itself  upon  the  contract.^*  It  is  a  right  peculiarly  for  the 
protection  of  the  vendor  of  the  goods.  Where  the  vendor  has  sold 
goods  to  a  vendee  and  has  put  them  into  the  hands  of  the  carrier 
for  delivery  to  the  buyer,  and  then  discovers  that  the  buyer  is 
insolvent,  he  may  repossess  himself  of  the  goods,  and  for  this 
purpose  may  stop  their  transit  in  the  hands  of  the  carrier  at  any 
time  before  they  are  delivered  to  the  buyer. 

§  587.  The  law  favors  the  right. — Stoppage  of  the  goods  in 
transit  is  favored  by  the  law  because  it  is  just.  It  is  grounded 
upon  the  plain  reasons  of  justice  and  equity  that  one  man's  prop- 
erty shall  not  be  applied  to  the  payraent  of  another  man's  debts. 
"The  right  itself  is  regarded  as  an  extension  merely  of  the  lien 
for  the  price  which  the  seller  of  the  goods  has  on  them  while 
remaining  in  his  possession;  which  lien  the  courts  will  not  per- 
mit to  be  superseded  before  the  vendee,  who  has  become  insolvent, 
obtains  possession,  unless  in  the  meantime  the  goods  have  been 
sold  to  a  person  who  in  good  faith  has  paid  value  for  them,  and 
so  Avould  be  a  loser  by  his  purchase  if  that  were  held  invalid. ' '  '^ 

§  588.  Some  requisites  to  the  right  to  exercise  stoppage  in 
transitu. — Two  conditions  must  exist  in  order  to  give  the  vendor 
the  right  to  exercise  the  privilege  of  stopping  the  goods  in  tran- 
sit: (1)  The  goods  must  have  been  sold  on  credit;  and  (2)  the 
buyer  must  be  insolvent,  and  the  insolvency  not  known  to  the 
seller  at  the  time  of  selling  the  goods. 

The  right,  however,  is  not  defeated  or  destroyed  by  part  pay- 
ment of  the  purchase  price,  or  by  the  acceptance  of  a  bill  of  ex- 
change or  promissory  note  for  a  part  of  the  price.^®  The  in- 
solvency of  the  buyer  must  exist  at  the  time  of  exercising  the 
right,  and  it  is  said  it  is  immaterial  that  the  insolvency  existed 
at  the  time  of  the  sale  of  the  goods,  provided  the  seller  was 
ignorant  of  the  fact.^^  If  the  vendor  knew  that  the  buyer  was 
insolvent,  he  could  not  avail  himself  of  the  right;  but  if  he  did 
not  know  at  the  time,  and  after  delivering  the  goods  to  the  car- 

34  Rowley  v.  Bigelow,  12  Pick.  se  Feise  et  al.  v.  Wray,  3  East, 
313;  Rogers  v.  Thomas,  20  Conn.  93;  2  Addison  on  Contracts.  188. 
53;  Atkins  v.  Colby,  20  N.  H.  154.  37    Loeb  v.  Peters,  63,  Ala.  243, 

35  Loeb   V.   Peters,   63   Ala.   243,  35  Am.  Rep.  17. 
35  Am.  Rep.  17. 


§    590.]        TERMINATION  OP  LIABILITY  OF  WAREHOUSEMEN.  627 

rier  for  delivery  to  the  buyer  he  discovers  the  fact,  he  can  exer- 
cise the  right  and  retake  the  goods.^^ 

§  589.  How  exercised — Notice  by  whom — To  whom. — No  for- 
mal manner  of  exercising  the  right  is  required ;  any  notice,  clear 
and  unequivocal,  to  the  carrier  who  has  the  goods  in  his  posses- 
sion and  control  to  withhold  the  delivery  of  the  goods  to  the 
buyer,  stating  his  claim,  and  ordering  that  the  goods  be  either 
held  by  the  carrier  to  his  own  order  or  returned  to  him,  may  be 
sufficient.^^  The  notice  should  be  given  by  the  vendor  of  the  goods, 
or  his  agent,  to  the  carrier  who  has  the  goods  for  transportation 
and  before  they  are  delivered  to  the  buyer.  The  carrier  has  the 
right  to  know,  indeed  it  is  his  duty  to  know,  that  the  notice  comes 
from  one  having  authority,  and  for  that  purpose  he  may  make 
inquiry  and  investigation,  for  he  would  have  no  right  to  with- 
hold the  delivery  of  the  goods  to  the  consignee  upon  a  notice  from 
one  who  did  not  have  authority  to  give  it,  as  from  a  stranger.*** 
And  where  the  consignor,  after  notice  to  the  carrier  to  hold  the 
goods  shipped,  unreasonably  refused  to  furnish  him  with  any 
evidence  of  the  validity  of  his  claim,  it  was  held  that  such  refusal 
might  be  construed  as  a  waiver  of  his  right. *^ 

§  590.  How  can  the  rig'ht  be  defeated. — The  right  cannot  be 
exercised  if  the  goods  have  been  delivered  to  the  buyer,  or  to  his 
agent,  before  the  carrier  has  notice  to  withhold  them.  The  notice 
must  come  to  the  carrier  while  the  goods  are  in  his  control.  The 
carrier's  responsibility,  it  will  be  seen,  is  to  both  the  seller  and 
the  buyer,  or  those  claiming  under  him.  Should  he  fail  to  obey 
the  notice  of  the  seller  when  properly  given,  he  may  become 

38  Farrell  v.  Richmond  Ry.  Co.,  vendee  had  been  attached;  that 
102  N.  C.  390,  3  L.  R.  A.  647;  the  vendor  desired  to  save  the 
Benedict  v.  Schaettle,  12  Ohio  St.  goods,  and  to  deliver  them  to  no 
515;  Reynolds  v.  Boston,  etc.  R.  one  but  the  agent  of  the  seller. 
Co.,  43  N.  H.  583;  O'Brien  v.  Nor-  It  was  held  that  the  carrier,  who 
ris,  16  Md.  122.  When  insolvency  afterwards  delivered  the  goods  to 
is  known  at  the  time  of  the  sale.  the  vendee  was  liable  to  the  ven- 
Fenkhausen  v.  Fellows,  20  Nev.  dor  for  conversion.  Jones  v. 
312;  Emerson  v.  Peteler,  35  Minn.  Earle,  37  Cal.  630,  99  Am.  Dec. 
481,  29  N.  W.  312,  4  L.  R.  A.  732.  338.    A   notice,   although    it   does 

39  Allan  V.  Railway  Co.,  79  Me.  not  contain  reasons,  is  held  good. 
327;  Reynolds  v.  Railway  Co.,  43  Allan  v.  Me.  Cent.  Ry.  Co.,  79  Me. 
N.  H.   580;    Howe  v.   Stewart.  40  327,  9  Atl.  895. 

Vt.   145;    Hutchinson,  Car.   §   410.  4i  Allan  v.  Maine  Cent.  Ry.  Co., 

40  The  vendor  of  goods  notified      79  Me.  327. 
an  agent  of  the  carrier  that  the 


628  CAKRIERS.  [§    590- 

liable  for  the  value  of  the  goods;  should  he  obey  the  notice  with- 
out the  legal  right,  the  liability  would  be  just  as  great  for  the 
assignee  or  the  creditors  of  the  buyer,  and  if  not  to  these  he  might 
be  liable  to  the  buyer. 

If  the  goods  have  come  to  the  possession  of  the  buyer,  then 
they  are  out  of  the  control  of  the  carrier  and  the  notice  would 
be  too  late ;  they  may  have  arrived  at  the  place  of  delivery ;  but 
the  question  always  is,  are  they  still  controlled  by  the  carrier? 

Where  a  quantity  of  logs  was  bargained  for  and  sold  to  be  de- 
livered over  a  certain  dam  at  the  outlet  of  a  lake,  thence  to  be 
driven  by  a  certain  log-driving  company  to  the  purchaser's  booms 
and  mills,  it  was  held  that  the  right  of  stoppage  in  transitu  re- 
mained in  the  seller  until  the  logs  came  into  the  actual  possession 
of  the  buyer  at  his  boom,  and  the  buyer  having  become  insolvent 
in  the  meantime,  although  the  logs  had  arrived  at  the  place  of 
delivery,  the  seller  had  the  right  to  resume  the  possession  of 
them.*-  And  where  the  goods  were  not  received  by  the  buyer,  but 
by  mortgagees  who  were  in  possession  of  his  store  when  the  goods 
arrived,  under  a  mortgage,  and  where,  at  the  time  of  the  delivery 
of  the  goods  shipped  to  the  buyer,  "his  store  and  stock  were  in 
the  possession  of  an  agent  who  represented  several  mortgagees 
whose  mortgages  were  given  after  the  goods  were  ordered,  and 
under  one  of  which  a  sale  was  made  at  about  the  date  of  such 
delivery,  and  the  goods  bid  in  by  one  of  the  mortgagees,  who  re- 
mained in  possession,  and  from  whom  and  the  merchant,  who  was 
acting  as  agent  for  the  mortgagee,  a  portion  of  the  goods  ordered 
were  replevied  by  the  vendor,  who  claimed  the  right  to  stop  them 
in  transit, ' '  it  was  held  that  this  was  not  a  delivery  to  the  buyer, 
and  if  he  was  insolvent  at  the  time  of  purchasing  the  goods,  the 
vendor's  rights  were  paramount  to  any  acquired  at  the  mortgage 
sale.  The  court  say :  ' '  The  mortgagees  do  not  stand  in  the  posi- 
tion of  hon-a  fide  purchasers  of  the  property;  the  right  of  stop- 
page could  not  be  divested  by  a  purchase  of  the  goods  under  the 

42  Johnson    v.    Eveleth,    93    Me.  begins;    when  he  divests  himself 

306,   48   L.   R.   A.    50;    Sheppard,  of  possession  in  such  capacity  to 

etc.  R.  Co.  V.  Burrows,  62  N.  J.  L.  the   buyer,   the   transit   ends   and 

469,  41  Atl.  695;  Neimeyer  Lumber  the  stoppage  by  the  seller  to  be 

Co.  V.  Burlington,  etc.  R.  Co.,  54  effective  must  occur  between  these 

Neb.    321,    74   N.    W.    670.      When  two  points.     Hall  v.  Diamond,  63 

the  carrier  takes  possession  from  N.    H.     565;     Walch    v.     Blakely 

the  seller  as  carrier,  the  transit  6  Mont.  194,  3  L».  R.  A.  648,  note. 


§    590.]        TERMINATION  OF  LIxiBILITY  OF  WAREHOUSEMEN.  629 

mortgage  sale ;  the  transit  had  not  ended  unless  there  was  actual 
delivery  to  the  buyer. ' '  *^ 

An  attachment  against  the  buyer,  or  an  execution  levied  before 
the  actual  delivery  of  the  goods,  will  not  defeat  the  right.**  The 
buyer,  being  the  consignee  of  the  goods,  has  the  right  to  take 
them  from  the  carrier  at  any  intermediate  point  between  the 
shipping  point  and  destination,  and  if  he  does  so,  his  possession 
would  defeat  the  right  of  the  seller  to  stop  the  goods  in  transit 
Whenever  and  wherever  the  goods  come  actually  into  the  buyer's 
possession,  then  and  there  the  right  is  defeated.*^ 

So  an  assignment  of  the  bill  of  lading  to  a  dona  fide  purchaser 
who  pays  value  for  the  goods  will  defeat  the  right.***  But  the 
transfer  of  the  bill  of  lading  as  collateral  security  to  a  previous 
obligation,  without  any  new  consideration  advanced,  does  not 
constitute  such  an  assignment  as  will  defeat  the  seller's  right  to 
stop  the  goods.  Nothing  short  of  a  hana  fide  sale  of  the  goods  for 
value,  or  the  possession  of  them  by  the  vendee,  can  defeat  the 
vendor's  right  of  stoppage  in  transitu,  and  hence  it  has  been  held 
that  an  assignee  in  trust  for  creditors  of  the  insolvent  vendee  is 
not  a  purchaser  for  value,  and  consequently,  takes  it  subject  to 
the  exercise  of  any  right  of  stoppage  in  transitu  which  may  exist 
against  the  assignor.*^ 

A  mere  resale  of  the  goods  by  the  buyer,  however,  will  not  de- 
feat the  right  of  the  first  seller  to  stop  the  goods,  for  it  would 
seem  that  such  a  sale  would  lack  the  element  of  delivery;  nor 
would  there  be  any  evidence  of  the  right  to  make  delivery  of  the 
goods.  But  in  case  of  an  assignment  of  the  bill  of  lading  to  a 
bona  fide  purchaser  which  stands  for  the  goods,  and  may  be  de- 
livered as  the  goods,  the  case  assumes  a  very  different  phase ;  the 
former  w^ill  not  defeat  the  right,  but  the  latter  sale  will.  ' '  There 
is  no  doubt,  if  the  vendee  makes  a  resale  of  the  goods,  he  makes 
it  subject  to  the  vendor's  right  to  stop  the  goods  in  transitu.  But 
this  is  while  the  goods  are  going  to  the  first  vendee.    After  the 

43  Kingman  v.  Dennison,  84  63  Ala.  243,  35  Am.  Rep.  17; 
Mich.  608,  11  L.  R.  A.  347.  Becker   v.    Hallgarden,    86    N.    Y. 

44  Farrell  v.  Richmond,  etc.  Ry.  167;  Lickbarrow  v.  Mason,  1 
Co.,  102  N.  C.  390,  3  L.  R.  A,  647.  Smith's  Ld.  Cas.  388. 

45  Walch  V.  Blakely,  6  Mont.  194.  ■*-  Lesassier     v.     S.     W.     Co.,     2 
4GCurrie  v.  Roulstone,  2  Overt.      Wood,   35;    Pattison  v.   Culton   et 

(Tenn.)  110;  Walter  v.  Ross,  2  al.,  33  Ind.  240,  5  Am.  Rep.  199; 
Wash.  (D.  C.)  283;  Loeb  v.  Peters,      Harris  et  al.  v.  Pratt,  17  N.  Y.  249. 


G?>0  CARRIERS.  [§    591. 

first  vendee  has  resold  them  and  put  them  upon  their  second 
passage,  the  transit,  between  the  vendor  and  his  vendee,  is  at  an 
end.  But  a  resale  will  not  defeat  the  vendor's  right  to  stop  the 
goods  in  transitu  until  they  have  reached  their  first  destination, 
unless  the  bill  of  lading  is  assigned,  or  the  vendee  has  anticipated 
the  arrival  and  taken  possession,  which  he  may  do,  or  the  vendor 
consents  to  the  resale."  *^ 

§  591.  Lien  of  the  carrier  for  freight  has  priority. — The  spe- 
cific lien  of  the  carrier  for  freight  and  storage  is  prior  to  the 
right  of  the  vendor  to  repossess  himself  of  the  goods ;  *^  but  it  has 
been  held  that  a  clause  in  the  bill  of  lading  by  which  the  carrier 
has  a  lien  on  goods  shipped,  for  arrearage  of  freight  and  charges 
due  from  the  owner  or  consignee  on  other  goods,  will  not  enable 
the  carrier  to  hold  the  goods  shipped  on  account  of  freight  due 
from  the  vendee  on  preceding  shipments,  to  the  prejudice  of  the 
vendor's  right  of  stoppage  in  transitu.  That  is  to  say,  while  the 
specific  lien  for  freight  and  storage  on  the  goods  shipped  will  be 
given  priority  over  the  vendor's  right  to  stoppage  in  transit,  a 
general  lien,  though  created  by  written  contract,  will  not  have 
priority,  for  it  is  but  a  claim  of  no  greater  dignity  or  importance 
than  the  claims  of  other  creditors.^" 

48  The  lan^age  of  the  court  in  goods  (shipped)  for  all  arrearages 
Eaton  et  al.  v.  Cook.  32  Vt.  61;  of  freight  and  charges  due  by  the 
Pattison  v.  Culton,  33  Ind.  240,  said  owners  or  consignees  on  other 
35  Am.  Rep.  199.  A  sale  for  un-  goods.'  The  counsel  for  the  de- 
paid  freight  to  the  carrier  will  fendant  could  give  us  no  author- 
not  defeat  the  right.  Wheeling,  ity  in  support  of  this  defense,  and 
etc.  R.  Co.  V.  Coots,  65  Ohio  St.  none,  we  think,  can  be  found,  to 
551;  Mechem  on  Sales.  1562;  the  effect  that  such  a  stipulation 
Schmidt  v.  Steamship  Pennsyl-  should  be  construed  to  take  away 
vania,  4  Fed.  548.  this  'highly  favored'  and  most  im- 

49  Pa.  Steel  Co.  v.  Georgia,  etc.  portant  right  of  the  vendor  to 
R.  &  B.  Co..  94  Ga.  636;  Rucker  v.  preserve  his  lien,  in  order  that  his 
Donovan,  13  Kan.  251,  19  Am.  goods  may  'not  be  applied  to  the 
Rep.  84.  payment  of  another  man's  debts', 

50  Farrell  v.  Richmond,  etc.  Co.,  much  less  to  those  of  his  agent, 
102  N.  C.  390,  11  Am.  St.  Rep.  760,  to  whom  he  delivered  them  for 
3  L.  R.  A.  647;  Pa.  R.  Co.  v.  Am.  carriage.  Shippers  would  hardly 
Oil  Works.  126  Pa.  St.  485.  The  contemplate  that  in  accepting 
court  in  Farrell  v.  Railroad  Co.  such  a  bill  of  lading  the  well  es- 
say: "The  second  defense  rests  tablished  and  cherished  right  of 
upon  the  following  clause  of  the  stoppage  in  transitu  was  to  be 
bill  of  lading:  'The  several  car-  made  dependent  upon  whether  a 
riers  shall  have  a  lien  upon  the  distant  consignee  was  indebted  to 


§    592.]        TERMINATION  OF  LIABILITY  OP  WAREHOUSEMEN.  631 

§  592.  Stoppage  in  transitu — Duty  of  carrier — Termination 
of  liability. — So  long  as  goods  are  in  the  control  of  the  carrier, 
the  notice  of  stoppage  in  transitu  may  be  given,  for  during  all 
this  time  the  goods  are  considered  to  be  in  transit.^^  If  the  goods 
have  been  actually  or  constructively  delivered  to  the  vendee,  so 
that  the  carrier  can  no  longer  control  them,  then  the  carrier's 
liability  has  terminated.  But  if  the  carrier  has  the  possession 
and  control  of  the  goods,  and  the  notice  has  been  given,  his  duty 
becomes  twofold:  to  the  vendor  to  see  that  his  rights  are  pro- 
tected, to  the  buyer  that  he  shall  not  be  unlawfuly  treated.  As 
we  have  seen,  the  right  is  based  upon  the  insolvency  of  the  buyer ; 
if  he  is  solvent,  the  seller  has  no  right  to  stop  the  goods,  nor  has 
the  carrier  any  right  to  withhold  them  from  delivery.  Under 
such  circumstances  if  the  carrier  is  in  doubt  he  has  the  right 
and  it  is  his  duty  to  insist  upon  full  investigation  of  all  the  facts, 
not  only  as  to  the  question  of  insolvency,  but  any  other  fact  that 
may  go  to  the  right  of  the  seller  to  stop  the  goods,  and  he  may 
retain  the  property  in  his  possession  until  he  is  satisfied.  Should 
he  be  unable  to  determine  the  facts,  and  both  the  vendor  and 
vendee  are  demanding  the  goods  and  threatening  to  bring  actions 
against  him  to  recover  them,  the  carrier  would  no  doubt  have  the 
right  to  file  a  bill  of  interpleader  in  an  equity  court  and  compel 
the  parties  to  settle  the  question  between  themselves.  And  when 
it  has  been  so  settled  and  he  has  delivered  the  goods  in  accord- 
ance with  the  decree  of  the  court,  his  liability  would  terminate. 

the  carrier,  and  the  commercial  stantially  pledging  their  goods 
world  would  doubtless  be  sur-  for  the  payment  of  an  existing  in- 
prised  if  it  were  understood  that  debtedness  due  their  agent,  the 
whenever  such  a  stipulation  was  carrier,  by  a  possible  insolvent 
imposed     upon     consignors     they  vendee." 

were  in  effect  yielding  up  their  lien  ■'^i  Hutchinson   on   Carriers,   sec. 

for  the  purchase-money  and  sub-  416. 


PAET  SIXTH 


CARRIERS  OF  PASSENGERS 


CHAPTER  I. 


THE  RELATION— WHO  ARE  PASSENGERS. 


I  593  The  relation. 

Who  Abe  Passengers, 

594.  Definition. 

595.  Ttie    status    fixed    more   or 

less  by  intention. 

596.  Not  essential  that  the  per- 

son should  be  in  the  ve- 
hicle of  the   carrier. 

597.  Express     messengers     and 

mail   agents. 

598.  Mail     agents     and     passen- 

gers. 

599.  Drovers. 


§  600.  Workmen   and   employees. 

601.  Carrier    must    receive    the 

person   as   a   passenger. 

602.  Persons    violating    reason- 

able   regulations. 

603.  Prepayment  of  fare. 

604.  Fraud  on  carrier. 

605.  Termination    of    the    rela- 

tion. 

606.  Passengers  on  street-cars. 

607.  Reasonable  regulations. 

608.  Must    occupy    usual    place 

provided     by     the     com- 
pany. 


§  593.  The  relation. — There  is  an  element  that  necessarily 
enters  into  the  relation  of  carriers  of  passengers,  very"  materially 
affecting  both  the  duty  and  the  liability  of  the  carrier,  that  can 
in  no  way  be  an  element  in  any  of  the  relations  thus  far  con- 
sidered. It  is  the  passenger's  intelligence.  In  the  carrying  of  in- 
animate freight  the  carrier  is  privileged  to  store  it  away  as  he 
may  see  fit,  being  careful  to  give  it  safe  and  proper  carriage,  but 
it  is  at  all  times  entirely  under  his  control.  And  so  in  the  car- 
riage of  animate  freight,  as  live  stock,  the  carrier  or  his  servants, 
of  necessity,  have  control  of  the  property;  his  liability,  however, 
is  modified,  as  we  have  seen,  to  the  extent  that  the  damage  might 
be  attributable  to  the  inherent  nature  of  the  property  or  the  life 
of  the  freight.  But  where  the  carrier  is  engaged  in  the  carrying 
of  passengers,  the  modification  of  his  liability  must  necessarily  be 


G34  CARRIERS  OP  PASSENGERS.  [§    593. 

very  much  greater,,  for  the  subject  of  the  carriage  has  more  than 
mere  instinct;  it  has  intelligence,  judgment  and  discretion.  And 
this  judgment,  intelligence  and  discretion  must,  of  necessity, 
lessen  the  control  and  absolute  supervision  of  the  carrier,  for 
the  law  necessarily  requires  that  the  passenger  should  exercise 
a  reasonable  intelligence,  judgment  and  discretion  in  avoiding 
injury;  he  must  use  his  faculties  to  shun  danger;  he  must  ex- 
ercise at  least  ordinary  care.  And  so  it  follows  that  the  ele- 
ment which  resulted  in  that  rule  of  law,  which  has  been  so 
often  mentioned,  and  which  was  demanded  by  public  policy, 
that  the  liability  of  the  common  carrier  of  goods  should  be  that 
insurer,  does  not  exist  in  the  carrjang  of  passengers.  The  liabil- 
ity is  very  much  lessened,  and  very  greatly  modified.  He  is  not 
an  insurer  of  the  safety  of  the  passenger,  but  is  held  to  that  high 
degree  of  diligence  which  the  particular  business,  surrounded  by 
its  dangers  and  demands  for  skill  and  care,  requires. 

Chief  Justice  Marshall,  in  the  early  case  of  Boyce  v.  Ander- 
son,'^ which  was  an  action  for  the  loss  of  certain  slaves,  in  dis- 
cussing this  particular  phase  of  the  question  said:  "Can  a  sound 
distinction  be  taken  between  a  human  being  in  whose  person  an- 
other has  an  interest,  and  inanimate  property?  A  slave  has 
volition,  and  has  feelings  which  cannot  be  entirely  disregarded. 
These  properties  cannot  be  overlooked  in  conveying  him  from 
place  to  place.  He  cannot  be  stowed  away  as  a  common  pack- 
age. Not  only  does  humanity  forbid  this  proceeding,  but  it 
might  endanger  his  life  or  health.  Consequently,  this  rigorous 
mode  of  proceeding  cannot  safely  be  adopted  unless  stipulated 
for  by  special  contract.  Being  left  at  liberty,  he  may  escape. 
The  carrier  has  not  and  cannot  have  the  same  absolute  control 
over  him  that  he  has  over  inanimate  matter.  In  the  nature  of 
things,  and  in  his  character,  he  resembles  a  passenger,  not  a 
package  of  goods.  It  would  seem  reasonable,  therefore,  that  the 
responsibility  of  the  carrier  should  be  measured  by  the  law  which 
is  applicable  to  passengers  rather  than  by  that  which  is  applic- 
able to  the  carriage  of  common  goods." 

As  to  the  distinction  between  the  liability  of  the  carrier  of 
passengers  and  the  liability  of  the  carrier  of  goods,  it  has  been 
said:  "The  latter  has  neither  the  power  of  volition  or  motion 
and  is  completely  under  the  carrier's  control.     The  former  is 

12  Pet.  (U.  S.)  151. 


§    595.]  THE   RELATION — WHO   ARE  PASSENGERS.  635 

operated  upon  by  moral  causes,  the  latter  only  by  physical ;  and 
of  necessity  this  distinction  must  be  kept  in  view  in  the  applica- 
tion of  the  rule. ' '  ^ 

Who  ARE  Passengers. 

§  594.  Definition. — A  passenger  is  one  not  a  servant  of  the 
carrier  who  by  the  consent  of  the  carrier,  express  or  implied,  is 
being  transported  in  the  vehicle  of  the  carrier  from  place  to 
place,  or  who  is  at  a  station  of  the  carrier  with  the  intention  of 
at  once,  or  as  soon  as  possible,  entering  upon  such  relation.  This 
definition  can  be  said  to  comprise  the  general  essentials,  but  it 
would  be  difficult  to  form  a  definition  that  would  include  every 
essential  or  circumstance  that  might  in  particular  cases  enter 
into  the  determination  as  to  who  are  legally  passengers.  It  is  a 
status  or  relation  that  must  be  determined  in  each  particular 
case. 

§  595.  The  status  fixed  more  or  less  by  intention. — One  who 
is  on  board  the  train  or  vehicle  of  the  carrier,  and  in  the  place 
usually  furnished  for  the  conveyance  of  passengers  and  is  being 
conveyed,  is  legally  presumed  to  be  a  passenger  and  to  have  com- 
plied with  all  the  essentials  necessary  or  legally  required  to  con- 
stitute him  a  passenger,  and  should  his  relation  as  such  be  dis- 
puted, the  burden  of  proof  would  be  upon  the  carrier  to  show 
that  he  was  not  legally  a  passenger.^  But  one  who  enters  the 
waiting-rooms  or  passenger-cars  or  coaches  of  the  carrier  without 
any  intention  of  being  transported  is  not  a  passenger,  but  a 
mere  licensee,  or  a  trespasser,  depending  upon  the  intention  of 
the  person  and  the  privileges  granted  him.  There  must  be  an 
intention  upon  the  part  of  the  person  to  become  a  passenger  to  be 
conveyed  to  some  place  by  the  carrier,  and  it  is  this  intention 
manifested  in  the  direction  of  becoming  a  passenger  that  largely 
fixes  his  status.*     While  it  is  true  that  the  relation  is  a  con- 

2  Clark  V.  McDonnell,  4  Mc-  the  wrong  one  attempted  to  leave 
Cord  (N.  C.)  223;  1  Fetter,  Car-  it  and  was  injured.  The  court 
riers  of  Passengers,  sec.  2;  Hutch-  said  upon  the  undisputed  facts 
inson  on  Carriers,  sec.  495.  the  plaintiff  had  not  been  accepted 

3  Iseman  v.  South  Carolina,  etc.  by  the  defendant  as  a  passenger 
Co.,  52  S.  C.  566.  See  post,  §  640  at  the  time  of  the  accident  and 
and  notes.  had  himself  abandoned  the  inten- 

4  Where  one  had  boarded  a  car  tion  of  becoming  one.  .  .  .  The 
by   mistake   and   learning   it   was  judge       therefore      properly      in- 


636  CARRIERS  OF  PASSENGERS,  [§    596. 

tractual  relation,  it  is  not  necessary  that  the  contract  for  car- 
riage should  be  an  express  contract.  It  may  be  implied,  and 
often  is,  from  slight  circumstances.  The  consent  of  the  carrier 
is  presumed  from  the  fact  that  it  is  his  legal  duty  to  carry  all 
persons  who  apply,  with  certain  exceptions;  and  so  it  has  been 
held  that  the  contract  need  not  be  consummated  by  the  payment 
of  fare,  or  even  by  entering  the  vehicle  of  the  carrier,  but  may 
depend  largely  upon  the  intention  of  the  person  at  the  time  he 
enters  the  depot  or  the  waiting-room,  or  the  car,  or  the  boat,  or 
the  vehicle  of  the  carriage.^ 

§  596.  Not  essential  that  the  person  should  be  in  the  vehicle 
of  the  carrier. — One  may  become  a  passenger  and  entitled  to 
all  the  privileges  and  right  to  be  protected  as  such,  even  before 
entering  the  vehicle  of  the  carrier,  provided,  of  course,  he  has 
the  intention  of  being  transported  without  delay  by  the  carrier. 
He  becomes  a  passenger  often  while  waiting  at  the  station  or 
waiting-room  of  the  carrier  for  transportation.  A  person  who 
goes  into  the  station  of  the  carrier  with  the  iona  fide  intention 
of  becoming  a  passenger  is  entitled  to  the  privileges  and  the 
rights  of  a  passenger,  at  least  so  far  as  the  safety  of  his  person 
from  abuse  or  assault  or  defects  in  the  station,  platforms,  etc.,  is 
concerned.®  And  where  one  was  "injured  by  the  slipping  of  a 
gang-plank  while  attempting  to  cross  it  when  entering  a  steamer 
to  take  passage,  he  was  regarded  as  a  passenger. ' '  "^  The  court 
say :  "  It  cannot  be  questioned  that  a  person  may  become  a  pas- 


structed  the  jury  tliat  the  defend 
ant  was  bound  to  exercise  ordi 
nary  care  only.  Hobertson  v, 
Boston,  etc.  Ry.  Co.,  190  Mass 
108,  76  N.  E.  513,  3  L.  R.  A.    (N 


becomes  a  passenger  and  the  car- 
rier must  exercise  reasonable 
care  in  protecting  him  as  such. 
Atchison,  etc.  R.  Co.  v.  Holloway, 
71  Kan.  1.     One  waiting  on  plat- 


S.)  588;  where  a  number  of  cases  form  built  by  a  street  car  company 

are   cited   which   take  a  different  for  passengers,  held  a  passenger, 

view.  Spencer  v.  St.  Louis  Transit  Co., 

Where  plaintiff  entered  a  ferry  111  Mo.  App.  653,  86  S.  W.  593. 

office   intending   to   buy   a   ticket,  s  North    Chicago    Street   Co.    v. 

held  not  to  be  a  passenger.  Vande-  Williams,  140  111.   275,   52  Am.  & 

grift  V.  West  Jersey,  etc.  Co.,  71  Eng.  R.  Cases,  522. 

N.  J.  L.  637,  60  A.  184.     See  edi-  e  Gordan    v.    Grand    St.    etc.    R. 

lorial    notes,    104    Am.    St.    Rep.  Co.,  40  Barb.  546;   2  Wood's  Rail- 

585-9.     Where  one  enters  a  rail-  way   Law,   1037,   1045.     See   cases 

road  station  intending  to  become  cited  ante,  §  595. 

a  passenger  on  a  train  soon  to  ar-  ^  Rogers  v.  Kennebec  S.  Co.,  86 

rive,    and    purchases    a   ticket   he  Me.  261,  25  L.  R.  A.  491. 


§    596.]  THE   RELATION — WHO  ARE  PASSENGERS.  637 

senger  before  the  transportation  has  actually  commenced,  and 
before  he  has  entered  the  carrier's  vehicle.  In  the  familiar  case 
of  Brien  v.  Bennett,^  the  defendant's  omnibus  was  passing  on  its 
journey  and  the  plaintiff  made  a  signal  for  the  driver  to  stop  and 
take  him  up.  The  omnibus  was  accordingly  stopped  for  that 
purpose  and  the  door  opened,  but  just  as  the  plaintiff  was  put- 
ting his  foot  on  the  step  the  omnibus  was  driven  along  and  the 
plaintiff  was  thrown  upon  his  face  and  injured.  It  was  held 
that  the  stopping  of  the  omnibus  at  the  plaintiff's  request  implied 
a  consent  to  take  him  as  a  passenger,  and  that  thereupon  in  at- 
tempting to  enter  the  carriage  he  had  the  rights  of  a  passenger. 
In  Shannon  v.  Boston,  etc.  Co.,^  a  person  waiting  in  the  station 
for  a  passage  on  a  train  soon  to  depart  was  invited  by  the  ticket 
agent  to  sit  in  an  empty  ear  standing  on  the  side  track  while  the 
waiting-room  was  being  cleaned.  It  was  held  that  she  was  en- 
titled to  the  same  protection  from  the  company  while  in  this  car 
as  if  in  the  regular  waiting-room.  In  either  place  the  person  is 
a  passenger  in  the  care  of  the  company."  ^^  And  where  a  person 
had  purchased  a  ticket  at  the  station  or  depot  of  defendant  com- 
pany, intending  to  be  a  passenger  on  the  cars  of  the  company, 
and  while  attending  to  the  checking  of  her  baggage  was  injured 
by  being  knocked  down  by  persons  engaged  in  scuffling  in  one  of 
the  passage-ways  of  defendant's  station,  it  was  held  that  the  re- 
lation of  common  carrier  and  passenger  was  established,  and  the 
company  was  required  to  exercise  reasonable  care  to  protect  the 
passenger  from  injury  in  the  use  of  the  station  or  depot  for  the 
purposes  of  the  journey.  And  if  the  passenger  uses  the  usual 
ways  and  passages  for  the  purpose  of  obtaining  checks  for 
baggage,  and  is  injured  by  any  dangers  existing  in  or  on  such 
ways  and  passages  which  are  known,  or  ought  to  be  known,  to 
the  servants  of  the  company  having  charge  of  such  station  or 
depot,  or  which  could  have  been  reasonably  anticipated  by  them, 
and  reasonable  care  has  not  been  exercised  to  protect  the  passen- 
ger from  such  dangers,  liability  exists  on  the  part  of  the  defen- 
dant company  to  respond  in  damages  for  such  injuries.  The 
court  say:  "A  railroad  company  is  a  common  carrier,  and  owes 
to  its  passengers  the  duty  of  guarding  them  from  assaults  and 

8  8  Car.  &  P.  724.  Warren    v.    Fitchburg    R.    Co.,    8 

9  78  Me.  52.  Allen,  227,  85  Am.  Dec.  700;   Cas- 
io Smith  V.  St.  Paul,  etc.  R.  Co.,      well    v.    Boston,    etc.    R.    Co.,    98 

32    Minn.    1,    50    Am.    Rep.    550;      Mass.  194,  93  Am.  Dec  151. 


638  CARRIERS  OF  PASSENGERS.  [§    597. 

insults  from  their  fellow-passengers  and  strangers  when  from  a 
high  degree  of  care  the  same  might  have  been  prevented.^^  This 
duty  grows  out  of  and  is  impliedly  a  part  of  the  contract  be- 
tween the  carrier  and  the  passenger.  According  to  the  uniform 
tendency  of  adjudications,  which  we  admit  as  authorities,  the 
carrier  owes  to  the  passenger  the  duty  of  protecting  him  from 
violence,  insults  and  assaults  of  his  fellow-passengers  or  in- 
truders, and  will  be  held  responsible  for  its  own  or  its  servants' 
neglect  in  this  particular,  when,  by  the  exercise  of  proper  care, 
the  acts  of  violence  might  have  been  foreseen  and  prevented ;  and 
while  not  required  to  furnish  watchmen  or  servants  sufficient  to 
overcome  all  force  or  negligence  when  unexpectedly  happening, 
yet  it  is  their  duty  to  provide  reasonable  precautions  to  protect 
the  passenger  from  assaults  from  any  quarter  at  which  they 
might  reasonably  be  expected  to  occur  under  the  circumstances 
of  the  case  and  the  conditions  of  the  parties."  ^^ 

And  where  a  person  had  purchased  a  ticket  at  the  ticket  office 
of  the  carrier,  with  the  intention  of  becoming  a  passenger  on  one 
of  its  trains,  and  had  passed  through  the  turnstile  provided  by 
the  company  for  that  purpose,  and  onto  its  depot  platform,  it 
was  held  that  the  relation  of  carrier  and  passenger  existed  be- 
tween the  parties  when  the  purchaser  of  the  ticket  had  passed 
through  the  turnstile. ^^ 

§  597.  Express  messengers  and  mail  agents. — Express  mes- 
sengers are  not  servants  of  the  carrier  company,  but  are,  as  a 
general  rule,the  servants  of  the  express  company  which  contracts 
with  the  railroad  company  to  carry  its  goods  over  their  line ;  but 
in  some  cases  the  railroad  company  has  an  express  business  of  its 
own,  in  which  case  the  express  messenger  would  be  the  servant 
of  the  company  and  not  a  passenger.  Express  messengers,  as  a 
general  rule,  are  passengers  and  entitled  to  the  privileges  of 

11  Putnam    v.    Railroad    Co.,    55  be  carried  is  at  liberty  to  change 

N.  Y.  108;   Hendricks  v.  Railroad  his  mind,   he  is  not  a  passenger 

Co.,  44  N.  Y.  Super.  Ct.  8.  and  for  an  injury  which  he  might 

i2Exton   V.   Central   R.   Co.,   62  sustain    through    the    negligence 

N.  J.  Law,  7,  42  Atl.  486,  affirmed  of  the   carrier   he   must  seek   re- 

63  N.  J.  Law,  356.  dress  as  a  stranger."    This  would 

13  111.  Cent.  R.  Co.  v.  Treat,  75  hardly   seem   to   be   supported   by 

111.  App.  327.  In  Chicago  &  Grand  authorities   to   the   full   extent   of 

Trunk  R.   Co.   v.   Stewi-rt.   77   111.  the  statement. 
App.  66,  it  was  held  that  "so  long  See  notes  and  cases  cited,  post, 

a.s  a  person  merely  proposing  to  §   629. 


§  597.] 


THE  KELxVTION — WHO   ARE  PASSENGERS. 


639 


passengers,  but  in  some  cases  the  express  companies  stipulate  in 
their  contract  with  the  railroad  or  carrier  company  that  they 
shall  be  exempted  from  liability,  and  with  such  an  exemption  so 
stipulated,  and  understood  by  the  messenger  who  takes  the  em- 
ployment, accepting  it  with  full  knowledge  of  the  stipulation,  it 
has  been  held  that  the  express  messenger  is  not  a  passenger  upon 
the  carrier  company's  trains.^*  But  where  the  express  messenger 
has  no  knowledge  of  the  stipulation  limiting  liability,  and  does 
not  himself  agree  to  such  a  limitation,  he  will  not  be  deprived  of 
his  rights  as  a  passenger  and  will  be  entitled  to  protection  against 
the  negligence  of  the  railroad  company  or  its  servants.  And,  as 
a  general  rule,  it  may  be  stated  that  where  there  is  no  such  lim- 
itation by  contract,  express  or  implied,  an  express  messenger 
carried  on  a  railroad  train  in  the  exercise  of  his  business  under  a 
contract  between  a  railroad  company  and  an  express  company  is 
a  passenger,  and,  so  far  as  consistent  with  his  duties,  is  entitled 
to  protection  as  such. 

In  Brewer  v.  N.  Y.  etc.  R.  Co.,^^  the  court,  in  considering  the 


14  In  Baltimore  &  Ohio  R.  Co. 
V.  Voight,  176  U.  S.  498,  it  was 
held  that  an  express  messenger 
occupying  an  express  car,  in 
charge  of  express  matter,  in  pur- 
suance of  a  contract  between  the 
railroad  company  and  the  ex- 
press company,  is  not  a  passenger 
within  the  meaning  of  the  rule 
of  public  policy  which  denies  the 
validity  of  contracts  limiting  the 
liability  of  the  carrier  to  a  pas- 
senger for  negligence,  and  cannot 
recover  of  the  railroad  company 
for  injuries  sustained  in  a  col- 
lision, where  the  contract  be- 
tween the  companies  exempts  the 
railroad  company  from  such  lia- 
bility, while  their  own  contract, 
voluntarily  entered  into  as  a 
condition  of  employment,  assumes 
all  such  risks,  and  stipulates  that 
he  will  indemnify  and  hold  his 
employer  harmless  from  all  liabil- 
ity for  such  accident  or  injury. 
In  Blair  v.  Railroad  Co.,  66  N.  Y. 
313,  23  Am.  Rep.  55,  it  was  held: 


"Where  there  is  no  express  ex- 
emption provided  by  contract,  a 
railroad  company  is  liable  for  the 
consequences  of  its  own  or  its  ser- 
vants' negligence  to  persons  trav- 
eling upon  its  trains  as  messen- 
gers or  agents  of  an  express  com- 
pany to  the  same  extent  as  to 
other  passengers,  although  no 
charge  is  made  for  their  fare." 
Knowlton  v.  Erie,  etc.  Co.  19 
Ohio  St.  266,  20  Am.  Rep.  395. 
But  where  the  plaintiff  was  taken 
into  the  express  car  by  the  ex- 
press messenger  to  teach  him  the 
business  without  authority  of  the 
company,  the  conductor  suppos- 
ing him  to  be  an  agent  of  the 
company,  it  was  held  that  he  was 
not  a  passenger.  Union  Pacific 
R.  Co.  V.  Nichols,  8  Kan.  505,  12 
Am.  Rep.  475. 

Express  messenger  a  passen- 
ger. Davis  V.  Chesapeake,  etc.  R. 
Co.,  119  Ky.  641,  92  S.  W.  339,  5 
L.  R.  A.   (N.  S.)   458. 

15  124  N.  Y.  59,  11  L.  R.  A.  483. 


G40  CARRIERS  OF  PASSENGERS.  [§'  597. 

question  under  discussion,  say :  ' '  When  he, ' '  meaning  the  express 
messenger,  "entered  into  the  service  of  the  express  company  he 
assumed  the  ordinary  hazards  incident  to  that  business  in  his  re- 
lation to  that  company,  but  there  was  no  presumption  or  implied 
understanding  that  the  messenger  took  upon  himself  the  risks 
of  injiiry  he  might  suffer  from  the  negligence  or  fault  of  the 
defendant;  he  was  in  no  sense  the  employee  of  the  defendant, 
nor  could  he,  without  his  consent,  be  subjected  to  the  responsibili- 
ties of  that  relation.  He  was  lawfully  in  the  car,  having  charge 
of  the  property  and  business  there  of  the  express  company,  under 
its  employment,  and  although  he  paid  no  fare  to  the  defendant, 
was  carried  by  virtue  of  no  contract  made  by  him  personally 
with  the  latter,  and  must  have  understood  that  he  was  there  pur- 
suant to  some  arrangement  of  his  employer  with  the  defendant, 
he  was  not  necessarily  by  that  fact  chargeable  with  notice  of  the 
provisions  in  question  of  the  contract.  Presumtively  he  was 
entitled  to  protection  against  personal  injury  by  the  negligence 
of  the  defendant. "  ^« 

The  test  seems  to  be.  Was  the  person  injured  lawfully  upon 
the  train  of  the  carrier  company  under  a  contract,  express  or 
implied,  that  does  not  make  him  an  employee  or  servant  of  the 
company  ?  And  so  it  has  been  held  that  persons  who  are  engaged 
in  business  for  their  own  profit  and  advantage  on  the  carrier's 
conveyance,  with  the  consent  of  the  carrier,  are  passengers,  and 
entitled  to  protection  as  such  from  the  carrier.  And  where  the 
plaintiff  was  keeping  bar  upon  the  steamboat  of  defendants 
under  an  agreement  by  which  he  was  to  pay  them  $200  per 
month  for  the  privilege  and  use  of  the  bar,  and  was  also  acting 
as  agent  for  an  express  company,  such  company  paying  defend- 
ants a  monthly  rate  for  carrying  packages  and  messengers  over 
the  route,  defendants'  route  consisting  partly  of  a  passage  by 
steamboat  and  partly  of  a  passage  by  railway,  and  plaintiff  was 
injured  by  defendant's  railway  engine  when  on  his  way  to  take 
charge  of  the  bar  and  the  express  matter,  it  was,  held  that  the 
plaintiff  sustained  the  relation  of  passenger  to  defendants,  and 
not  the  relation  of  employee,  the  court  holding  that  even  as  bar- 


10  Mo.    Pac.    R.   Co.   v.    Ivey,    71  N.  Y.  Cent.  R.  Co.,  24  N.  Y.  222; 

Tex.  409;  Blair  v.  Erie  R.  Co.,  66  Collett  v.  London  &  N.  W.  R.  Co.,, 

N.    Y.    313;     Nolton    v.    Western  16  Q.  B.  984. 
R.   Corp.   15  N.  Y.   444;    Smith  v. 


§    598.]  THE  RELATION — WHO  ARE  PASSENGERS.  641 

keeper  plaintiff  was  in  no  sense  an  employee  of  defendants.^^ 
Therefore  news-agents,  traveling  upon  the  trains  of  the  company 
to  supply  passengers  with  news  and  paying  to  the  company  a 
stipulated  sum,  are  passengers  and  not  employees.  Where  "a 
railroad  corporation,  in  consideration  of  the  payment  to  them 
by  a  person  of  a  certain  sum  of  money  per  year  in  quarterly  in- 
stalments and  his  agreement  to  supply  the  passengers  on  one  of 
their  trains  with  iced  water,  issued  season  tickets  to  him  quarterly 
for  his  passage  on  any  of  their  regular  trains,  and  permitted  him 
to  sell  popped  com  on  all  their  trains,  it  was  held  that  his  rela- 
tion to  them,  while  traveling  upon  the  road  under  this  contract, 
was  that  of  a  passenger  and  not  of  a  servant."  The  court  say: 
"Like  other  season-ticket  holders  he  paid  the  defendants  for  the 
privilege  of  passing  and  repassing  regularly  over  the  road,  and 
was  at  liberty  to  go  or  not,  as  he  pleased.  It  appears  to  us  that 
the  service  which  he  rendered  in  furnishing  water  to  passengers 
was  intended  as  a  compensation  for  some  increase  in  his  privi- 
leges. The  fact  remains  that  he  was  traveling  on  his  own  busi- 
ness and  not  on  that  of  the  defendants. ' '  ^^  But  where  the  news- 
boy was  upon  the  train  by  connivance  of  the  conductor,  and 
without  the  consent  or  by  contract  with  the  carrier,  it  was  held 
that  he  did  not  sustain  the  relation  of  a  passenger.^^  The  same 
rule,  however,  would  not  apply  as  to  street-car  companies.  In 
their  case  the  newsboy  is  on  and  off  the  ear  as  he  sees  fit;  he  is 
not  considered  as  a  passenger,  and  is  at  most  a  licensee.^'' 

§  598.  Mail  agents  are  passengers. — There  seems  to  be  no 
question  but  that  the  mail  agents  of  the  United  States  traveling 
upon  railroad  trains  in  charge  of  mail  cars  and  the  United  States 
mail  are  passengers  and  entitled  to  all  the  protection  due  to 
passengers  upon  the  trains  of  the  company ;  and  the  courts  have 
gone  so  far  as  to  hold  that  this  is  true  even  though  a  mail  agent 
is  traveling  upon  a  pass  containing  a  limitation  or  exemption 
from  liabilitj^  for  damages  on  account  of  injuries  occurring 
through  the  negligence  of  the  company.  It  of  course  rests  upon 
that  principle  which  we  have  already  stated,  that,  where  a  person 

17  Yeomans  v.  Navigation  Co.,  20  Philadelphia  Traction  Co.  v. 
U  Cal.  71.  Orbann,    119    Pa.    St.    37,    12    Atl. 

18  Com.  V.  Vermont,  etc.  R.  Co.,  816;  North  Chicago  Street  Car 
108  Mass.  7,  11  Am.  Rep.  301.  Co.  v.  Thurston,  43  111.  App.  587; 

19  Duff  V.  Railroad  Co.,  91  Pa.  Blackmore  v.  Railroad  Co.,  38  N. 
St.  458,  36  Am.  Rep.  675.  S.   Q.  B.   172 

41 


642 


CARRIERS  OP  PASSENGERS. 


:§■  598. 


is  traveling  under  a  contract  which  does  not  make  him  an  em- 
ployee or  servant  of  the  company,  he  will  be  entitled  to  that 
care  and  diligence  which  is  due  to  one  who  is  strictly  a  passenger. 
In  Seyholt  v.  New  York  B.  Co.,^^  where  "a  mail  agent  was 
killed  by  an  accident  on  defendant's  railroad  while  riding  upon 
a  pass  issued  for  his  use  by  defendant,  upon  which  was  an  in- 
dorsement by  which  it  was  stipulated  that  the  defendant  should 
be  exempt  from  liability  for  damages  on  account  of  injuries  oc- 
curring through  its  negligence, ' '  it  was  held  that  the  stipulation 
exempting  the  defendant  from  liability  was  "unauthorized  and 
void,"  and  that  although  "the  decedent  received  the  pass,  and 
was  chargeable  with  the  knowledge  of  its  contents,  it  did  not  con- 
stitute a  contract  between  him  and  defendant ;  ' '  that  the  defend- 
ant was  under  ' '  the  absolute  duty  of  carrying  the  agent  in  charge 
of  the  mails  and  had  no  right  to  impose  the  condition.  There- 
fore, if  the  exemption  clause  was  to  be  considered  as  a  contract, 
it  was  void  for  want  of  consideration. ' '  ^^ 


2195  N.  Y.  562,  49  Am.  Rep.  75; 
Gulf,  etc.  R.  Co.  V.  Wilson,  79 
Tex.  371;  Libby  v.  Railroad  Co., 
85  Me.  34.  It  is  not  denied  that 
the  defendant  company  owed  the 
same  degree  of  care  to  this 
plaintiff  (the  mail  agent)  while 
riding  in  the  passenger  car  in 
charge  of  the  mails  that  it  did 
the  passenger  upon  the  train. 
Baltimore  &  Ohio  R.  Co.  v.  State, 
72  Md.  36,  6  L.  R.  A.  706,  18  Atl. 
1107;  Norfolk,  etc.  R.  Co.  v. 
Shott,  92  Va.  34;  Gleason  v.  Rail- 
road Co.,  140  U.  S.  435;  Gulf,  etc. 
R.  Co.  V.  Wilson,  79  Tex.  371,  15 
S.  W.  280,  11  L.  R.  A.  486;  Cleve- 
land, etc.  Co.  V,  Ketcham,  133 
Ind.  346,  33  N.  E.  116,  16  L.  R. 
A.  339;  Brewer  v.  N.  Y.,  etc.  R. 
Co.,  124  N.  Y.  59,  26  N.  E.  324,  11 
L.  R.  A.  433. 

22  In  Cleveland,  etc.  R.  Co.  v. 
Ketcham,  133  Ind.  346,  19  L.  R. 
A.  339,  it  was  held  that  "a  rail- 
way postal  clerk  in  the  employ- 
ment of  the  United   States,  who 


is  entitled  to  ride  free  while  on 
duty,  or  when  traveling  to  and 
from  duty,  is  a  passenger  entitled 
to  the  same  care  and  protection 
as  other  passengers  while  return- 
ing home  from  duty,  although  he 
is  in  the  postal  car  assisting  in 
handling  the  mail  by  request  of 
the  clerk  in  charge  and  has  not 
paid  or  offered  to  pay  fare,  or  ex- 
hibited his  commission  as  postal 
clerk,  or  notified  the  conductor  of 
his  presence  on  the  train,  and  the 
conductor  has  not  learned  that 
he  is  on  the  train."  And  in  Ohio, 
etc.  R.  Co.  V.  Voight,  122  Ind. 
288,  it  was  held  that  "the  rail- 
road company  is  prima  facie  lia- 
ble for  negligence  in  causing  the 
death  of  a  postal  agent  in  charge 
of  the  mails  on  its  trains  where 
the  mail  car  was  derailed."  Glea- 
son v.  Va.  etc.  R.  Co.,  140  U.  S. 
435;  see  notes  to  this  case  38  L. 
Ed.  458;  Houston,  etc.  R.  Co.  v. 
Hampton,  64  Tex.  427;  McGoffin 
v.  Mo.  Pac.  R.  Co.,  102  Mo.  540. 


§    599.]  THE  RELATION — WHO   ARE  PASSENGERS.  643 

§  599.  Drovers. — Persons  in  charge  of  live  stock  being 
shipped  over  the  carrier's  road,  and  riding  upon  a  free  pass  is- 
sued by  the  railroad  company  on  account  of  the  shipment  of  the 
stock,  are  passengers.  In  Cleveland,  etc.  R.  Co.  v.  Curran,^^  the 
company  "in  making  a  contract  for  shipment  of  live  stock  at  a 
specified  rate,  without  any  additional  consideration,  delivered  to 
the  shipper  a  drover's  pass  entitling  him  to  go  with  his  stock  and 
to  return  on  a  passenger  train.  In  the  written  agreement  for 
transporting  the  stock,  the  holder  of  the  ticket  was  referred  to 
as  riding  free  to  take  charge  of  the  stock.  On  the  pass  was  an 
indorsement  that  it  was  a  free  ticket,  and  that  the  holder  as- 
sumed all  risk  of  accident,  and  agreed  that  the  company  should 
not  be  liable  under  any  circumstances,  whether  of  negligence  by 
the  company's  agents  or  otherwise,  for  any  injury  to  his  person 
or  property,  and  that  he  would  not  consider  the  company  as  com- 
mon carriers,  or  liable  as  such."  The  court  held  "that  the  pass 
and  the  agreement  for  transporting  the  stock  constituted  together 
a  single  contract,  and  that  the  holder,  both  while  going  with  his 
stock  and  returning,  was  not  a  gratuitous  but  a  paying  passenger. 
That  the  stipulation  in  the  contract  exempting  the  company  from 
liability  for  negligence  constituted  no  defense  to  an  action 
brought  by  the  shipper  for  personal  injury  caused  by  the  negli- 
gence of  the  servants  of  the  company  in  the  management  of  its 
trains,  such  stipulation  being  against  the  policy  of  the  law,  and 
therefore  void. ' '  The  court  in  the  opinion  say :  "  It  is  true  that 
common  carriers  are  not  insurers  of  the  safety  of  passengers  as 
they  are  of  goods  which  they  undertake  to  carry ;  but  the  princi- 
ple of  law  which  forbids  their  being  allowed  to  exempt  themselves 
from  liability  for  the  consequences  of  their  negligence  in  respect 
to  goods  applies  with  still  greater  force  in  the  case  of  passengers. 
The  common  law  has  a  peculiar  regard  for  human  life;  and  for 
this  reason  exacts  a  greater  degree  of  care  in  respect  to  it  than 

23 19    Ohio   St.   1 ;    Lake   Shore,  Weaver  v.  Ann  Arbor  R.  Co.,  139 

«tc.   Ry.   Co.   V.   Teeters   166    Ind.  Mich.    590,    5    Am.    &   Eng.    Ann. 

355,    77    N.    E.    599,    5    L.    R.    A.  Cases,  764.     Very  many  cases  are 

(N.  S.)    425;    111.  Cent.  R.  Co.  v.  cited   in   the  opinion   and   numer- 

Beebe,  174  111.  13,  50  N.  E.  1019,  ous  cases  from  different  states  are 

43  L.  R.  A.  210;   Chicago,  etc.  R.  collected   in   the  notes   in   5   Am. 

Co.    V.    Troyer,    70    Neb.    287,    97  &  Eng.   Ann.   Cases,   768-9.     Also 

N.  W.  308;  Spriggs  Adm'r  v.  Rut-  cases  upon  the  limiting  of  liabil- 

land  R.  Co.,  77  Vt.  347,  60  A.  143;  ity  by  contract  in  such  cases. 


644  CAERIERS  OF  PASSENGERS  [§'  600. 

in  relation  to  any  matter  of  mere  property.  Carriers  of  the 
class  of  the  plaintiff  in  error  are  creatures  of  legislation,  and  de- 
rive all  their  powers  and  privileges  by  grant  from  the  public. 
They  are  created  to  effect  public  purposes,  as  well  as  to  subserve 
their  own  interest.  They  are  intended,  by  the  law  of  their 
creation,  to  afford  increased  facilities  to  the  public  for  the  car- 
riage of  persons  and  property,  and,  in  performing  this  office, 
they  assume  the  character  of  public  agents,  and  impliedly  under- 
take to  employ  in  their  business  the  necessary  degree  of  skill 
and  care.  In  Philadelphia  &  B.  B.  Co.  v.  Derby  ^*  it  was  laid 
down  that,  'when  carriers  undertake  to  convey  persons  by  the 
powerful  but  dangerous  agency  of  steam,  public  policy  and  safety 
require  that  they  should  be  held  to  the  greatest  possible  care  and 
diligence.  And  whether  the  consideration  for  such  transporta- 
tion be  pecuniary  or  othen\'ise,  the  personal  safety  of  passengers 
should  not  be  left  to  the  sport  of  chance  or  the  negligence  of 
careless  agents.  Any  negligence  in  such  cases  may  well  deserve 
the  epithet  of  gross. '  ' ' 

§  600.  Workmen  and  employees. — It  seems  to  be  well  settled 
that  if  an  employee  is  traveling  in  accordance  with  his  employ- 
ment with  the  company  he  will  be  regarded  as  an  employee.  A 
pertinent  question  would  be.  Was  he  at  the  time  of  the  injury 
on  duty  for  the  company  as  their  servant  or  employee?  If  so, 
he  is  not  a  passenger  but  a  servant,  and  is  presumed  to  assume 
all  the  risks  ordinarily  incident  to  his  employment,  and  should 
the  injury  result  from  the  negligence  of  the  servants  of  the 
carrier  company,  that  other  rule  would  obtain,  that  the  com- 
pany would  not  be  liable  for  the  injury  of  one  of  its  servants 
caused  by  the  negligence  of  his  fellow-servants.  So,  where  one 
was  riding  upon  a  train  for  the  purpose  of  cleaning  snow  from 
the  track  and  was  injured  by  the  overturning  of  the  car  in  which 
he  rode  by  reason  of  an  unsuccessful  attempt  of  the  conductor  to 
remove  a  snowbank  from  the  track  by  means  of  the  snow-plough 
alone  aided  by  the  momentum  of  the  train,  it  was  held  "that 
a  recovery  by  the  plaintiff  was  precluded  by  the  facts  that  such 

24  14    How.    486;    Welch   v.   Pac.  471,    17    Am.    Rep.    719;     Illinois 

etc.  R.  Co.,  10  Ohio  St.  65;    Chi-  Cent.  R.  Co.  v.  Beebe,  69  111.  App. 

cago,   etc.  R.  Co.  v.  Winters,  175  363;    Lawson   v.    Railway   Co.,    64 

111.  293;   Maslin  v.  B.  &  O.  Co.,  14  Wis.  447;   Lake  Shore,  etc.  R.  Co. 

W.    Va.    180,    35    Am.    Rep.    748;  v.  Brown.  123   111.  162. 
Ohio,    etc.    Co.    v.    Selby,    47    Ind. 


§    600.]  THE  RELATION — WHO  ARE  PASSENGERS.  645 

overturning  of  his  car  was  one  of  the  perils  of  the  business  which 
he  assumed,  and  that  the  conductor  and  others,  whose  negligence 
is  alleged,  were  fellow-servants  in  the  same  employment. "  ^^ 

A  very  common  and  ordinary  example  demonstrating  this 
rule  is  found  where  persons  are  employed  in  loading  and  unload- 
ing gravel  trains  and  riding  back  and  forth  from  the  gravel  pits 
to  the  place  of  depositing  the  load;  such  persons  are  held  to  be 
in  the  employment  of  the  carrier  and  are  not  passengers.-®  But 
the  rule  as  to  the  liability  for  the  injury  of  employees  or  work- 
men who  are  being  transported  to  and  from  their  work  by  the 
carrier  company,  riding  upon  a  pass,  or  by  consent  of  the  con- 
ductor of  trains,  or  persons  having  charge  of  the  carrier's 
vehicles,  is  not  so  well  settled.  There  seems  to  be  some  conflict 
among  the  cases  upon  this  question,  A  large  number  of  cases 
hold  that  such  persons  while  being  transported  are  to  be  con- 
sidered as  employees  of  the  company,  while  others  contend  that 
they  are  entitled  to  be  treated  as  passengers.  An  attempt  is 
made  to  lay  down  a  rule  in  which  the  carrier  is  to  be  held  liable 
in  such  like  cases  by  the  court.  In  the  case  of  HutcJiinson  v.  York, 
etc.  R.  Co.^"^  the  court,  after  holding  that  the  carrier  was  not 
liable  in  the  particular  case  because  decedent  was  engaged  in  the 
discharge  of  his  duties  to  the  carrier,  say :  "  It  may,  however,  be 
proper  with  reference  to  this  point  to  add  that  we  do  not  think  a 
master  is  exempt  from  responsibility  to  his  servant  for  an  injury 
occasioned  to  him  hy  the  a^t  of  another  servant  where  the  ser- 
vant injured  was  not,  at  the  time  of  the  injury,  acting  in  the 
service  of  his  master.  In  such  a  case  a  servant  is  substantially 
a  stranger  and  entitled  to  all  the  privileges  he  would  have  had  if 
he  had  not  been  a  servant."  And  it  would  seem  that  this  rule 
would  be  a  safe  one  to  follow  in  this  class  of  cases.  Without  ques- 
tion the  employee  is  not  a  passenger  while  engaged  in  the  duties 
of  his  employment,  but  when  these  duties  have  ceased  and  he  is 
being  transported  by  the  carrier  by  reason  of  a  contract  which 
gives  to  the  carrier  compensation,  or  by  consent  of  the  carrier 
because  of  his  relations  to  the  person,  and  such  transportation 
is  not  in  accordance  or  along  the  duty  of  his  employment,  it  would 

25Howlard     v.     Milwaukee     R.      Kumler    v.    Junction    R.    Co.,    33 
Co.,  54  Wis.  226;    Sullivan  v.   In-      Ohio  St.  150.     Post,  sec.  623,  etc. 
dia  Mfg.  Co.,  113  Mass.  396;  Ladd  26  Ohio  &  M.  R.  Co.  v.  Tyndall, 

V.    Railroad    Co.,    119    Mass.    412;       13   Ind.   366,   74  Am.   Dec.  259. 

27  6  Eng.  Ry.  &  Canal  Cas.  580. 


646  CARRIERS  OF  PASSENGERS.  [§  600. 

seem  that  in  such  cases  the  employee  would  be  a  passenger.  As 
was  stated  by  the  court  in  the  case  of  State  v.  Maryland  B.  Co.,-^ 
in  discussing  the  conflict  of  authorities  upon  this  subject:  "In 
whatever  else  they  may  differ,  these  cases  all  agree  upon  one 
principle,  and  that  is  this :  if  the  plaintiff  is  not  at  the  time  of  the 
accident  engaged  in  the  actual  service  of  the  company,  or  in  some 
way  connected  with  such  service,  the  company  is  liable  for  the 
negligence  of  its  employees;  that  because  he  works  daily  for  the 
company  and  is  styled  its  employee,  the  company  is  not  exempt 
from  liability  for  the  negligence  of  its  other  servants  at  all  times 
and  under  all  circumstances;  that  the  exemption  depends  upon 
the  actual  service  within  the  scope  of  his  employment. ' ' 

So  a  brakeman  on  a  train  which  ran  daily  except  Sundays, 
who  was  employed  and  paid  by  the  day,  but  was  not  paid  on 
Sunday  unless  required  for  duty  on  that  day,  after  his  day's 
work  was  ended  on  Saturday  evening  by  the  permission  of  the 
conductor,  was  returning  home  to  spend  Sunday  and  was  per- 
mitted to  travel  free,  and  while  riding  in  a  caboose  ear  of  a  freight 
train  of  the  company  was  killed  by  a  collision  with  another  train, 
caused  by  the  negligence  of  the  employees  of  the  company,  in 
an  action  for  damages  it  was  held  that  he  was  a  passenger  and 
entitled  to  all  the  privileges  he  would  have  had  if  he  had  not  been 
an  employee ;  that  the  fact  that  he  was  riding  on  the  cars  upon  an 
employee's  pass  did  not  alter  the  case.  And  where  an  employee 
who  was  employed  to  work  upon  a  bridge  of  a  railroad  company, 
where  his  contract  entitled  him  to  free  transportation  from  his 
home  to  the  place  where  his  work  was  to  be  performed,  and  from 
that  place  back  to  his  home  at  night  when  his  work  was  over, 
was  killed  by  a  collision  with  another  train  caused  by  the  negli- 
gence of  defendant  company,  in  an  action  against  the  company  it 
was  held  that  the  employee  was  a  passenger  while  riding  upon 
the  train  to  his  home,  and  entitled  to  protection  as  such.^^ 

28  63    Md.    433,    441;     Doyle    v.  etc.    Co.    v.    Venable,    105    Tenn. 

Fitchburg,   etc.  R.   Co..   166  Mass.  460,  58  S.  W.  861,  51  L,.  R.  A.  886. 

492,    44    N.    E.    611,    33    L.    R.    A.  But   see   lanone  v.   N.   Y.   etc.   R. 

844;  Whitney  v.  N.  Y.  etc.  R.  Co.,  Co.,  21  R.  I.  452,  44  Atl.   592,  46 

43  C.  C.  A.  19,  102  Fed.  850,  50  L.  L.  R.  A.  730. 

R.  A.  615;  McNulty  v.  Pa.  R.  Co.,  29  McNulty    v.    Pa.    R.    Co.,    182 

182  Pa.  479,  38  Atl.  524.  38  L.  R.  Pa.     St.    479,    38    L.    R.    A.    376; 

A.  376;   Louisville  &  N.  R.  Co.  v.  Doyle  v.   Railroad   Co.,   162   Mass. 

Weaver,    108    Ky.    392,    56    S.    W.  66;   McDaniels  v.  Railroad  Co.,  90 

674,  50  L.  R.  A.  381;  Chattanooga,  Ala.    G4;    Tex.    &    Pac.    R.    Co.    v. 


§    601.]  THE   RELATION — WHO  ABE  PASSENGERS.  647 

§  601.  Carrier  must  receive  the  person  as  a  passenger. — 
WMle,  as  we  have  seen,  there  must  be  an  intention  on  the  part 
of  the  passenger  to  become  a  passenger  upon  the  carrier's  ve- 
hicle, there  must  also  be  an  express  or  implied  receiving  of  the 
person  as  a  passenger  by  the  carrier.  There  need,  of  course,  be 
no  formal  receiving  or  accepting  of  a  person  as  a  passenger  upon 
the  train  or  vehicle,  but  there  must  be  such  circumstances  as  in- 
dicate that  the  passenger  is  received,  and  that  the  carrier  ex- 
pects and  understands  that  persons  occupying  or  taking  advan- 
tage of  the  particular  situation  are  passengers.  For  example, 
the  carrier  company  holds  out  to  the  public  that  they  will  re- 
ceive and  carry  all  passengers  who  may  apply  to  them,  and  to 
that  end  they  furnish  coaches,  vehicles  and  cars  at  the  termini 
of  their  routes,  and  thus  invite  the  public  to  patronize  them,  and 
become  passengers  over  their  line,  and  persons  who  accept  this 
invitation  are  presumably  accepted  by  the  carrier.  There  are, 
however,  certain  reciprocal  duties  incumbent  upon  the  person 
who  seeks  to  become  a  passenger  and  avail  himself  of  the  privi- 
leges and  protection  of  a  passenger;  he  must  present  himself 
for  carriage  at  the  place  appointed  by  the  carrier  for  receiving 
its  patrons,  and  in  the  usual  manner;  he  must  occupy  the  usual 
place  upon  the  carrier's  vehicle,  train  or  boat;  that  is,  the  place 
furnished  for  and  usually  occupied  by  passengers.  This  has 
been  recognized  by  the  courts,  and  it  has  been  held  that  where 
one  clandestinely  obtains  passage  by  hiding  himself  away  in  the 
carrier's  boat,  or  occupies  an  unusual  place  on  the  carrier's  train, 
he  is  not  a  passenger  but  a  trespasser  and  not  entitled  to  the 
protection  due  to  a  passenger.  And  where  the  holder  of  a  free 
pass  on  a  railroad  gets  on  at  the  front  platform  of  the  baggage- 
car  next  to  the  tender  when  the  train  is  in  motion,  and  after  it 
has  left  the  depot,  and  then  tries  to  open  the  baggage-car  door, 
although  he  is  there  with  the  knowledge  of  the  conductor  that 
some  one  had  boarded  his  train,  such  person  is  not  a  passenger. 
The  court  say  in  such  case,  "it  was  also  necessary  for  the  plaint- 
iff to  prove  that  the  relation  of  passenger  and  carrier  existed  be- 
tween the  deceased  and  defendant.  This  relation,  which  was 
claimed  to  exist,  is  a  contract  relation.     A  railroad  company 

Smith,   67   Fed.   524,   31  L.  R.  A.  ment  of   rule   see   Transit  Co.   v. 

321.     See  notes  to  31  L.  R.  A.  321,  Venable,  105  Tenn.  460,  51  L.  R. 

•where   the   several   cases   are   col-  A.  886,  and  cases  cited, 
lected  and  stated.     For  full  state- 


648  CARRIERS  OF  PASSENGERS.  [§'   602. 

holds  itself  out  as  ready  to  receive  and  carry,  and  is  bound  to  re- 
ceive and  carry,  all  passengers  who  offer  themselves  as  such  at 
the  places  provided  for  taking  passage  on  its  trains,  and  who 
take  such  passage  in  the  cars  provided  for  passengers.  "When 
one  so  presents  himself,  the  contract  relation  under  which  he  ac- 
quires the  rights  of  a  passenger  may  be  either  express  or  implied 
from  the  circumstances.  If  a  person  goes  upon  cars  provided 
by  the  railroad  company  for  the  transportation  of  passengers 
with  the  purpose  of  carriage  as  a  passenger,  with  the  consent, 
express  or  implied,  of  the  railroad  company,  he  is  presumptively 
a  passenger.  Both  parties  must  enter  into  and  be  bound  by  the 
contract.  The  passenger  may  do  this  by  putting  himself  into 
the  care  of  the  railroad  company,  to  be  transported,  and  the 
company  does  it  by  expressly  or  impliedly  receiving  him  and  ac- 
cepting him  as  a  passenger.  The  acceptance  of  the  passenger 
need  not  be  direct  or  express,  but  there  must  be  something  from 
which  it  may  be  fairly  implied.  One  does  not  become  a  passen- 
ger until  he  has  put  himself  in  charge  of  the  carrier,  and  has 
been  expressly  or  impliedly  received  as  such  by  the  carrier. ' '  ^° 

§  602.  Persons  violating  reasonable  regulations. — Carriers  of 
passengers  may  make  reasonable  regulations  as  to  the  conduct 
of  their  business,  and  persons  violating  such  regulations  by  way 
of  obtaining  passage  upon  their  trains  or  vehicles,  as  a  general 
rule,  will  not  be  considered  as  passengers.  As,  for  example, 
railroads  generally  do  not  permit  persons  to  ride  upon  the  en- 
gine, in  express-cars,  mail-ears,  baggage-cars  or  in  unusual 
places,  or  upon  their  freight  trains,  without  their  consent;  and 
so,  when  persons  violate  these  regulations  and  obtain  passage 
without  the  consent  of  the  earner,  they  are  not  passengers  ;^^  nor 

30  111.  Cent.  R.  Co.  v.  O'Keefe,  make  a  complete  separation  be- 
168  111.  115,  39  L.  R.  A.  148;  tween  their  freight  and  passenger 
Bricker  v.  Philadelphia  &  R.  Co.,  business.  Where  this  is  done,  the 
132  Pa.  St.  1;  Webster  v.  Fitch-  conductor  of  a  freight  train  has 
burg  R.  Co.,  161  Mass.  298,  24  L.  such  general  authority  only  as  is 
R.  A.  521;  4  Elliott,  Railroads,  incidental  to  the  business  of 
sec.   1581.  moving    freight,    and    no    power 

31  Thomas  v.  Railroad  Co.,  72  whatever  as  to  the  transportation 
Mich.  355;  Arnold  v.  Railroad  of  passengers;  and  notice  of  this 
Co.,  83  111.  273;  Hutch,  on  Car-  limited  authority  will  be  implied 
Tiers,  538a;  Eaton  v,  Del.,  L.  &  from  the  nature  and  apparent  di- 
W.  R.  Co.,  57  N.  Y.  382.  Railroad  vision  of  the  business.  When  a 
companies     have     the     right     to  person  not  accepted  as  a  passen- 


§  602.; 


THE   RELATION — WHO   ARE  PASSENGERS. 


649 


are  tliey  even  licensees,  but  are  trespassers,  and  may  be  ejected. 
And  where  a  person  ran  to  catch  the  train  as  it  was  starting 
from  the  station,  and  was  not  seen  by  any  of  the  trainmen,  and, 
without  negligence  on  their  part,  was  injured  while  attempting 
to  board  the  train  while  moving,  it  was  held  that  he  was  not  a 
passenger  and  the  company  was  not  liable.^^  Where  a  person 
wrongfully  boards  a  freight  train  which  is  not  used  for  carrying 
passengers  and  remains  on  it  without  the  consent  of  the  servants 
of  the  company  in  charge  of  the  train,  he|  cannot  claim  the  right 
of  a  passenger;  and  if  injured  while  thus  being  carried,  the 
company  is  not  liable  unless  the  injury  was  caused  by  gross  or 
wilful  neglect  by  the  servants  of  the  company.^^ 

As  to  whether  one  can  be  deemed  a  passenger  who  gets  upon 
the  company's  trains  without  consent  or  permit  depends  some- 
what upon  the  custom  of  the  carrier  as  to  carrying  passengers 
upon  such  train,  as  well  as  upon  their  regulations  forbidding 
the  carriage  of  passengers.  The  fact  that  the  conductor  of  a 
freight  train  had  permitted  persons  to  ride  on  two  or  three  occa- 
sions and  had  collected  fare  would  not  be  sufficient  to  show  that 


ger,  and  without  the  knowledge 
of  the  railroad  company's  em- 
ployees, is  in  a  car  not  provided 
for  passengers,  but  exclusively 
devoted  to  the  railway  mail  serv- 
ice, and  with  no  right  to  remain 
there,  the  company  is  not  liable 
for  injuries  received  by  him  in  a 
collision.  Bricker  v.  Railroad 
Co.,  132  Pa.  St.  1.  In  Files  v. 
Boston,  etc.  R.  Co.,  149  Mass.  204, 
it  was  held  that  "the  person  who 
attempts  to  get  into  the  cab  of 
a  locomotive  engine  attached  to 
a  freight  train  on  a  railroad  used 
exclusively  for  the  transportation 
of  freight,  to  ride  for  his  own 
convenience  by  invitation  of  the 
conductor  of  the  train,  does  not 
acquire  the  rights  of  a  passenger 
and  cannot  recover  for  personal 
injuries  occasioned  to  him  by  the 
starting  of  the  engine,  even  if  he 
has  previously  ridden  thereon  by 
a  similar  invitation,  and  has  seen 


others,     including     railroad     em- 
ployees, do  so." 

32  Jones  V.  Boston,  etc.  R.  Co., 
163  Mass.   245. 

33  Louisville  &  N.  R.  R.  Co.  v. 
Moss,  13  Ky.  Law,  684.  One  who 
by  the  silent  acquiescence  of  the 
conductor  rode  upon  the  engine 
held  not  a  passenger.  Radley 
V.  Columbia  So.  R.  Co.,  44  Or. 
332,  1  Am.  &  Bng.  Ann.  Cases, 
447;  111.  Cent.  v.  O'Keefe,  168  111. 
115,  39  L.  R.  A.  148;  Missouri, 
etc.  R.  Co.  V.  Williams,  91  Tex.  255, 
42  S.  W.  Rep.  855.  One  riding  on 
gravel  train  held  not  a  passenger. 
Keating  v.  Mich.  Cent.  R.  Co.,  97 
Mich.  154;  on  a  timber  train.  111. 
Cent.  R.  Co.  v.  Meacham,  91 
Tenn.  428.  But  circumstances  may 
change  this  as  where  company  has 
been  in  the  habit  of  carrying  pas- 
sengers though  it  has  a  rule 
against  it.  Spence  v.  Chicago,  etc. 
R.  Co.,  117  Iowa,  L 


650  CARRIERS  OP  PASSENGERS.  [§'   603. 

the  train  was  a  passenger  train.  But  a  freight  conductor's 
authority  to  carry  passengers  might  be  implied  from  a  long 
course  of  business  of  the  company  in  mingling  its  freight  and 
passenger  business,  and  so  if  for  a  long  time  it  has  been  the  rule 
and  practice  of  the  company  to  separate  their  freight  and  pas- 
senger business,  and  carry  passengers  only  upon  their  passen- 
ger trains,  this  custom  and  practice  would  go  very  far  toward 
determining  the  question  as  to  whether  one  who  had  boarded 
such  a  train  would  be  a  passenger.^*  But  where  one  is  received 
upon  a  freight  train,  or  is  permitted  to  ride  in  an  unusual  place 
upon  the  passenger  train  or  vehicle  of  the  carrier  by  permission 
of  those  in  charge,  although  he  is  violating  the  reasonable  reg- 
ulations of  the  company,  and  although  he,  by  reason  of  the  man- 
ner of  boarding  the  train  or  the  vehicle  or  continuing  to  ride  in 
it,  is  a  trespasser,  nevertheless  the  carrier  owes  to  such  person, 
when  discovered,  a  protection  from  injury  to  the  extent  at  least 
of  ordinary  care.  It  is  that  care  and  protection  which  humanity 
would  demand  of  the  carrier.^^ 

§  603.  Prepayment  of  fare. — Prepayment  of  fare  is  not  a 
requisite  to  becoming  a  passenger.  "It  is  universally  agreed 
that  the  payment  of  the  fare,  or  price  of  the  carriage,  is  not 
necessary  to  give  rise  to  the  liability.  The  carrier  may  demand 
its  prepajonent,  if  he  chooses  to  do  so,  but  if  he  permits  the  pas- 
senger to  take  his  seat  or  to  enter  his  vehicle  as  a  passenger,  with- 
out such  requirement,  the  obligation  to  pay  will  stand  for  the 

34  Lrucas    V.    Milwaukee   R.    Co.,  the  conductor."     Woolsey  v.   Chi- 

33  Wis.  41;   Cleveland,  etc.  R.  Co.  cago,  etc.  R.  Co.,  39  Neb.  798,  25 

V.    Best,    169    111.    301.     Where   "a  L.    R.    A.    79;    Louisville,    etc.    R. 

person  was  riding  upon  a  locomo-  Co.  v.  Hailey,  94  Tenn.  383,  27  L. 

tive  engine  of  a  freight  train  by  R.   A.   549;    McVeety  v.    St.   Paul, 

agreement    with    the    fireman    of  etc.    R.    Co.,    45   Minn.    268,    11   L. 

such    engine    to    shovel    coal    for  R.    A.    174;    McNamara   v.    Great 

the  privilege  of  riding   (such  per-  Northern,    etc.    R.    Co.,    61    Minn, 

son  being  on  such  train  without  296;    Can.    Pac.    R.    Co.    v.    John- 

the  knowledge  or  consent  of  the  ston,  Montreal  Rep.,  6  Q.  B.  213; 

conductor     in     charge     thereof).  Powers  v.  Boston,  etc.  R.  Co.,  153 

held,    not   a   passenger,    and   that  Mass.  198. 

to   constitute  one   a  passenger  of  ss  Whitehead   v.   St.   Louis,    etc. 

the  carrier  on  whose  trains  such  Co.,  99  Mo.  263,  6  L.   R.  A.   409; 

person  is,  it  is  essential  that  such  Wagner    v.    Mo.    Pac.    R.    Co.,    97 

person    should    be    rightfully    on  Mo.  512,  3  L.  R.  A.  156;   Chicago, 

such  train,  or  should  be  thereon  etc.  R.  Co.  v.  Frazer,  55  Kan.  582. 
with  the  knowledge  or  consent  of 


§    605.]  THE  RELATION — WHO   ARE  PASSENGERS.  651 

actual  payment,  for  the  purpose  of  giving  effect  to  the  contract 
with  all  its  obligations  and  duties.  Taking  liis  place  in  the  car- 
rier's conveyance,  with  the  intention  of  being  carried,  creates  an 
implied  agreement  upon  the  part  of  the  passenger  to  pay  when 
called  upon,  and  puts  him  under  a  liability  to  the  carrier,  from 
which  at  once  spring  the  reciprocal  duty  and  responsibility  of 
the  carrier. ' '  ^® 

§  604.  Same  subject — Fraud  on  carrier. — But  if  the  person 
who  is  seeking  transportation  undertakes  to  defraud  the  carrier 
and  evade  the  payment  of  fare,  he  is  not  a  passenger,  nor  even  a 
licensee,  but  a  trespasser.  And  where  a  passenger  boards  a 
train  vdth  the  deliberate  purpose  not  to  pay  his  fare  and  adheres 
to  that  purpose,  or  being  on  the  train,  and  having  money  with 
him  with  which  he  could  pay  his  fare,  falsely  and  fraudulently 
represents  that  he  is  without  means  to  pay,  and  in  this  way,  and 
by  means  of  such  false  representations,  induces  the  conductor  to 
permit  him  to  remain  on  the  train  without  paying  his  fare,  the 
relation  of  carrier  and  passenger  and  the  obligations  resulting 
from  that  relation  are  not  established.^'^ 

§  605.  Termination  of  the  relation. — The  relation  of  passen- 
ger and  carrier  having  been  once  established  is  not  terminated 
when  the  passenger  alights  from  the  vehicle  of  the  railway  com- 
pany, but  continues  while  on  the  premises  of  the  carrier  com- 
pany for  a  period  of  time  reasonably  necessary  to  enable  him 
to  leave  the  premises,  and  during  this  time  he  is  entitled  to  the 
protection  of  the  company's  agents  and  servants,  even  from  the 
assaults  of  third  persons.^^  And  so  it  is  held  that  the  relation 
of  carrier  and  passenger  exists  when  a  passenger  is  obliged  to 
alight  from  a  car  to  go  to  another  to  be  carried  by  the  carrier  to 
his  destination.^®  And  where  a  passenger  on  a  railroad  train 
"alighted  by  direction  of  the  company,  or  by  its  implied  invita- 
tion, at  a  place  where  in  order  to  leave  the  premises  of  the  com- 
pany it  was  necessary  to  cross  intervening  tracks,  it   was   held 

36  Hutchinson  on  Carriers,  sec.  Brooks,  81  111.  245;  Railroad  Co. 
565;  Cleveland,  etc.  R.  Co.  v.  Best,  v.  Mehlsack,  131  111.  64;  Way  v. 
68  III.  App.  532,  537;  Chattanooga,  Railroad  Co.,  64  Iowa,  48,  and 
etc.  R.  Co.  V.  Huggins,  89  Ga.  494,  other  cases. 

503.  38  Tex.  &  P.  Ry.  Co.  v.  Dick,  63 

37  Condran   v.    Chicago,    etc.    R.      S.  W.  895. 

Co.,   14   C.   C.  A.    (U.   S.)    506,   67  so  Chicago  &  A.  Ry.  Co.  v.  Win- 

Fed.    522,    citing  Railroad   Co.   v.      ters,  175  111.  293,  51  N.  E.  901. 


652  CARRIERS  OF  PASSENGERS.  [§'  606. 

that  lie  remained  a  passenger  until  lie  had  crossed  such  tracks, 
provided  he  used  the  means  of  egress  which  the  company  had 
provided,  or  which  were  customarily  used  with  the  knowledge 
of  the  company  and  its  consent;"  and  in  such  case  that  "there 
was  an  implied  agreement  that  the  trains  of  the  company  should 
not  be  so  operated  as  to  make  the  exit  unnecessarily  dangerous," 
provided  such  passenger  exercised  reasonable  care  and  prudence 
in  avoiding  danger;  that  is,  such  care  and  prudence  as  under  all 
the  circumstances  a  reasonably  prudent  person  would  exercise.*" 
§  606.  Passengers  on  street-cars. — In  determining  who  are 
passengers  upon  the  sJtreet-cars,  we  are  to  apply  the  same  prin- 
ciples already  mentioned  so  far  as  they  are  applicable.  Street- 
ear  companies,  unlike  railroad  companies,  do  not  construct  and 
maintain  depots  and  waiting-rooms  for  their  passengers,  nor  do 
they,  except  in  cases  of  suburban  lines,  maintain  ticket  offices, 
but  passengers  are  expected  to  board  the  cars  from  the  street 
wherever  they  stop,  and  to  pay  their  fare  to  the  conductor  or 
person  in  charge.  Once  on  board  the  car  and  in  the  place  for 
passengers  with  the  intention  of  being  carried,  and  complying 
with  the  reasonable  regulations  of  the  company,  the  person  ia 
presumed  to  be,  and  is,  a  passenger  during  the  time  he  is  thus 
being  conveyed.  And  so  where  a  news-boy  boarded  a  street-car 
without  signaling  it  to  stop,  for  the  purpose  of  selling  papers, 

40  Chesapeake,    etc.    R.    Co.    v.  after  getting  off  street  car  not  a 

King,  99  Fed.  251,  40  C.  C.  A.  432,  passenger.    Conroy  v.  Boston,  etc. 

citing  Railway  Co.  v.  Coggins,  32  Co.,  188  Mass.  411.  74  N.  E.  672. 

C.  C.  A.  1,  88  Fed.  455;   Railway  But  see  McDonald  v.  St.  Louis,  etc. 

Co.  V.  Lowell,  151  U.  S.  209;  War-  Co.,   108   Mo.   App.   337,    83   S.   W. 

ner  v.  Railway  Co.,  168  U.  S.  339;  1001.  Where  a  conductor  assaulted 

Graven   v.   MacLeod,   35   C.    C.    A.  one  who  was  getting  off  his  car, 

47,  92  Fed.  846,  and  other  cases;  following  him  into  the  street,  held. 

Dodge  V.  Boston,  etc.  R.  Co.,  148  person  assaulted  was  a  passenger. 

Mass.  207;  Young  v.  N.  Y.  etc.  R.  Flynn   v.    St.    Louis   Transit   Co., 

Co.,  171  Mass.  33,  41  L.  R.  A.  193.  113     Mo.     185,     87     S.     W.     560. 

The    relation    of    passenger    and  Where  one  thrown  to  ground  by 

carrier  usually  continues  until  the  starting  of  street  car  when  under- 

passenger  has  a  reasonable  oppor-  taking    to    board    it,    having    one 

tunity  to   safely   alight  from   the  foot    on    step,    held    a    passenger, 

train    at    his    destination    at    the  Clark  v.  Durham,  etc.  Co.  138  N. 

place  provided  by  the  carrier  for  C.   77,   50   S.  E.   518.    And  where 

the  discharge  of  passengers,   and  one    signaled    street    car    and    it 

to    leave    the    carrier's    premises  slows  up  to  receive  him.     Lewis 

in  the  direction  ordinarily  taken.  v.    Houston,    etc.    Co.     (Tex.    Civ. 

Glen  V.  Lake  E.  &  W.  R.  Co.,  165  App.)    88  S.  W.  489 
Ind,    659,    73    N.    E.    861.      Person 


§    606.]  THE   RELATION — WHO  ARE  PASSENGERS.  653- 

and  jumped  off  again,  he  was  held  not  to  be  a  passenger  so  as  to 
charge  the  company  with  special  care  to  avoid  injuring  him, 
and  this  though  he  intended  to  pay  fare  if  the  conductor  asked 
him  for  it.*^  When  a  passenger  alights  from  the  car  upon  the 
street,  the  relation  of  passenger  ceases,  for  he  is  not  upon  the 
premises  of  the  company,  nor  is  there  any  implied  obligation  or 
duty  upon  the  part  of  the  company  to  provide  or  maintain  the 
place  of  alighting.  "The  street,"  say  the  supreme  court  of 
Massachusetts,  "is  in  no  sense  a  passenger  station  for  the  safety 
of  which  a  street-railway  company  is  responsible.  When  a  pas- 
senger steps  from  the  car  upon  the  street,  he  becomes  a  traveler 
upon  the  highway  and  terminates  his  relation  and  rights  as  a 
passenger,  and  the  railway  company  is  not  responsible  to  him  as 
a  carrier  for  the  condition  of  the  street,  or  for  his  safe  passage 
from  the  car  to  the  sidewalk.  Wlien  a  common  carrier  has  the 
exclusive  occupation  of  its  tracks  and  stations,  and  can  arrange 
and  manage  them  as  it  sees  fit,  it  may  be  properly  held  that  per- 
sons intending  to  take  passage  upon,  or  leave,  a  train  have  the 
relation  and  rights  of  passengers  in  leaving  or  approaching  the 
car  at  a  station.  But  one  who  steps  from  a  street-railway  car 
to  the  street  is  not  upon  the  premises  of  the  railway  company, 
but  upon  a  public  place  where  he  has  the  same  rights  with  every 
other  occupier,  and  over  which  the  company  has  no  control.  His 
rights  are  those  of  a  traveler  upon  the  highways  and  not  of  a 
passenger. ' '  ^^ 

So  where  a  passenger  was  injured  after  leaving  the  car,  in  at- 
tempting to  pass  behind  it,  by  falling  over  a  fender  which  had 
become  disarranged  without  the  laiowledge  of  the  company  and 
was  projecting  from  the  rear  of  the  car,  it  was  held  that  she 
could  not  recover.  The  court  say  :  "It  is  admitted  that  when 
the  plaintiff  left  the  car  she  ceased  to  be  a  passenger  of  the  de- 
fendant. When  she  began  to  walk  toward  her  house  she  was 
merely  a  traveler  upon  the  highway.  The  respective  rights  and 
duties  of  the  plaintiff  and  the  defendant  were  not  those  of  a 
passenger  and  a  common  carrier,  but  those  of  a  pedestrian  cross- 
ing a  public  street  in  which  was  a  street-railway  track  then  occu- 

41  Raming    v.    Metropolitan    St.  42  Creamer  v.  West  End  Street 

Ry.  Co.,   157  Mo.  477;    Blackmere  Car  Co.,  156  Mass.   320.  16  L.  R. 

V.   Railroad   Co.,   28   U.   C.   Q.   B.  A.  490;   Chattanooga  Electric  Ry. 

217;   Duff  V.  Railroad  Co.,  91  Pa.  v.  Boddy,  105  Tenn.  666,  51  L.  R. 

St.  458,  3  Am.  Rep.  675.  A.  885. 


654  CARRIERS  OF  PASSENGERS.  [§    608. 

pied  by  a  street-car,  and  of  a  street-railway  corporation  lawfully 
using  the  same  street  in  its  traffic. ' '  *^ 

§  607.  Reasonable  regulations. — And   so   a   street-car 

company  has  the  right  to  make  and  enforce  reasonable  regula- 
tions as  touching  the  rights  of  persons  boarding  their  cars  or 
being  conveyed  as  passengers.  And  the  same  rules  and  princi- 
ples of  law  apply  in  this  particular  as  apply  to  steam-railway 
companies. 

§  608.  Must  occupy  usual  place  provided  by  the  company. — 
The  carrier  company  cannot  be  said  to  have  received  a  person 
as  a  passenger  who  occupies  an  unusual  place  upon  its  vehicle; 
it  has  the  right  to  require  that  persons  shall  ride  in  the  places 
it  provides  if  such  places  are  reasonable  and  usual.  And  so 
where  a  boy  hangs  on  the  side  of  an  electric  car  with  his  feet 
resting  upon  the  boxing  of  the  axle  and  rode  there  without  offer- 
ing to  pay  fare,  it  was  held  that  he  was  not  a  passenger  to  whom 
the  carrier  owed  a  safe  carriage  and  immunity  from  injury.^* 
But  where  the  car  is  overcrowded  with  passengers,  and  persons 
are  compelled  to  occupy  unusual  places  for  carrying  passengers 
upon  the  car,  as  the  front  platform  or  the  rear  platform,  or  to 
ride  up  the  sides  and  steps,  and  their  position  is  known  to 
those  in  charge  of  the  car,  who  collect  fare  from  such  persons  as 
passengers  they  are  beyond  question  passengers  and  entitled  to 
to  all  privileges  and  protection  of  passengers.*^ 

43  Gargan   v.    West   End    Street  being   changed   as   usual   at   such 

Car  Co.,  176  Mass.  106,  49  L.  R.  point  from  one  end  of  the  car  to 

A.    421;     Bigelow    v.    West    End  the   other,   it   was   held   that   she 

Street  Car  Co.,  161  Mass.  393,  37  was  entitled  to  recover  as  a  pas- 

N.  R  367.  senger  for  her  injury  in  the  ab- 

n  Udell  V.  St  Ry.  Co.,  152  Ind.  sence  of  a  showing  that  the  com- 

507,  52  N.  B.  799.    Where  one  had  pany  had  used  the  highest  degree 

received  a  transfer  from  one  line  of  care.     Keater  v.   Scranton  Tr. 

of   a   street   railway    company   to  Co.,  191  Pa.  St.  102,  43  Atl.  86. 
its    other    line,    and    was    proceed-  45  Archer  v.  Ft.  Wayne,  etc.  Co., 

ing  from  the  sidewalk  to  her  car,  87  Mich.   101;    Upham  v.   Detroit, 

on    the    latter    line,    which    was  etc.    Co.,    85    Mich.    12;    Noble   v. 

standing  at  the  end  of  the  route.  Railway   Co.,   98   Mich.   249.     See 

when  she  was  struck  by  a  piece  notes  ante,  §  602. 
of  the  trolley,  which  broke  from 


CHAPTER  II. 

WHO  MUST  THE  CARRIER  ACCEPT  AND  CARRY,  AND  CERTAIN 
DUTIES  OF  CARRIERS  AND  PASSENGERS. 


609.  Quasi-public    servants. 

610.  Exceptions    to   the   general 

rule. 

611.  Carrier   must   protect 

passengers. 

612.  Right    to    separate    passen- 

gers according  to  sex. 

613.  Separation  of  races  a  rea- 

sonable  regulation. 


Ceetain  Duties   Incumbent  Upon 

THE  Caeeieb. 
§  614.  Implied   obligation. 

615.  Vehicles,    machinery,    road- 

ways, tracks,  etc. 

616.  Stational   facilities. 

617.  Duty     in     managing     and 

running  its  trains  or  ve- 
hicles. 

618.  The  duty  of  passengers. 


§  609.  Quasi-public  servants. — Common  carriers  of  passen- 
gers like  common  carriers  of  goods  are  gwasi-public  servants,  and 
so  are  bound  to  serve  the  public  when  their  reasonable  rules  and 
regulations  are  complied  with.  They  owe  a  duty  to  all  alike  to 
carry  passengers,  and  must  not  show  partiality  to  any  person  or 
class  of  persons.  ' '  At  this  day  it  would  be  superfluous  to  enter 
upon  a  discussion  to  support  the  doctrine  so  well  settled,  that 
common  carriers  are  public  agents,  transacting  their  business 
under  an  obligation  to  observe  equality  towards  every  member 
of  the  community,  to  serve  all  persons  alike,  without  giving  any 
unjust  or  unreasonable  advantages  by  way  of  facilities  for  the 
carriage  or  rates  for  transporting  them. ' '  ^ 

"A  person  having  a  public  duty  to  discharge  is  undoubtedly 
bound  to  exercise  such  office  for  the  equal  benefit  of  all,  and, 
therefore,  to  permit  the  common  carrier  to  charge  various  prices 
according  to  the  person  with  whom  he  deals*,  for  the  same  serv- 
ices, is  to  forget  that  he  owes  a  duty  to  the  community. ' '  ^ 

Public  policy  would  not  permit  the  great  franchises  that  are 


1  Atwater  v.  Delaware,  etc  R. 
Co.,  48  N.  J.  L.  55,  57;  1  Wood 
on  Railways,  sec.  195.  A  lead- 
ing case  upon  this  subject  is  said 
to  be  Messenger  v.   Pennsylvania 


R.   Co.,   7   Vroom.    (N.   J.)    407,   8 
Vroom.  531. 

2  Messenger  v.  Pennsylvania  R. 
Co.,  above  cited. 


656  CARRIERS  OF  PASSENGERS.  [§  611. 

granted  to  and  operated  by  common  carriers  of  the  country  to 
be  used  other  than  impartially  and  for  the  public,  and  so  the 
same  general  rule  exists  that  obtains  in  the  case  of  innkeepers. 

Common  carriers  are  bound  to  receive  all  passengers  who  ap- 
ply for  carriage  so  long  as  they  have  convenient  accommodations 
for  their  safe  carriage,  unless  there  is  a  sufficient  legal  excuse 
for  refusing  to  do  so.^ 

Professor  Parsons  in  his  work  on  Contracts  *  says :  "  It  is  his 
duty  to  receive  all  passengers  who  offer ;  to  carry  them  the  whole 
route;  to  demand  no  more  than  the  usual  and  established  com- 
pensation. ' ' 

§  610.  Exceptions  to  the  general  rule. — ^But  to  this  general 
rule  there  are  exceptions.  The  right  of  persons  to  be  trans- 
ported is  not  unlimited,  "but  is  subject,"  says  Judge  Stor}%^ 
' '  to  such  reasonable  regulations  as  the  proprietors  may  prescribe 
for  the  due  accommodation  of  passengers,  and  for  the  due  ar- 
rangement of  their  business.  The  proprietors  have  not  only 
this  right,  but  the  further  right  to  consult  and  provide  for  their 
own  interests  in  the  management  of  such  boats  as  a  common  in- 
cident to  their  right  of  property. ' ' 

§  611.  Carrier  must  protect  passengers. — The  carrier 

of  passengers  is  bound  to  protect  them  from  violence  and  in- 
juries not  only  from  its  own  servants,  but  from  strangers  and 
co-passengers,  and  this  liability  is  upon  the  carrier  from  the 
time  a  person  becomes  a  passenger,  or  entitled  to  protection  as 
such,  until  that  relation  ceases.^     And  so  it  wiU  be  seen  that  the 

3  Bennett  v.  Button,  10  N.  H.  of  the  court.  Cook  v.  Gourdin,  2 
481,  486.  Nott  &  McCord  (S.  C),  22;  Mark- 

4  2  Parsons,  Contracts,  225;  ham  v.  Brown,  8  N.  H.  523;  Pear- 
Wheeler  V.  San  Francisco,  etc.  R.  son  v.  Duane,  4  Wall.  (U.  S.) 
Co.,  31  Cal.  46,  86  Am.  Dec.  147.  605;  McKee  v.  Owen,  15  Mich. 
In  Toledo,  etc.  R.  Co.  v.  Pence,  115.  "A  common  carrier  of  pas- 
68  111.  524,  it  was  held  that  rail-  sengers  may  establish  on  his  car 
road  companies  are  public  high-  or  vessel  an  agency  for  the  deliv- 
ways  only  in  the  sense  of  being  ery  of  passengers'  baggage,  and 
compelled  to  accept  and  carry  all  may  exclude  all  other  persons 
passengers  to  the  extent  of  their  from  entering  upon  it  for  the 
liability.  Indianapolis,  etc.  R.  purpose  of  soliciting  or  receiving 
Co.  V.  Renard,  46  Ind.  293.  orders    from    persons    in    competi- 

B  Jencks    v.    Coleman,    2    Sumn.  tion  with   such  agency."     Barney 

(U.  S.)    222.     In  this  case  Daniel  v.  O.,  B.  &  H.  S.  S.  Co.,  67  N.  Y. 

Webster     was     of     counsel     and  301. 
Charles  Sumner  was  the  reporter  e  Exton  v.  Cent.  R.  Co.,  63  N.  J. 


§    612.]  WHO  MUST  CARRIER  ACCEPT  AND  CARRY.  657 

carrier  must  protect  the  passenger  from  injuries  from  third  per- 
sons while  in  the  depot  of  the  company,  its  baggage-rooms  or 
waiting-rooms,  as  well  as  upon  its  trains  or  vehicles  while  being 
transported/  Because  of  this  liability  the  law  permits,  and  it 
may  be  said  assists,  the  carrier  in  avoiding  it.  It  is  therefore 
well  settled  that  the  carrier  may  refuse  to  receive  persons  with- 
in its  depots  or  upon  its  trains  as  passengers  who  assault  its  pas- 
sengers, or  are  liable  to  do  so,  or  to  do  that  for  which  the  carrier 
would  incur  a  liability.  And  so  it  has  been  held  that  persons 
who  are  insane  or  disorderly,  gamblers,  montemen,  drunken 
persons,  persons  who  are  extremely  filthy  or  are  infected  with 
contagious  diseases,  or  of  notorious  and  unequivocally  bad 
character,  or  who  are  guilty  of  gross  and  vulgar  habits  or  con- 
duct and  create  disturbances  on  board,  or  who  refuse  to  comply 
with  the  reasonable  regulations  of  the  carrier,  may  be  rejected 
by  the  carrier,  and  if  they  have  boarded  their  train  or  vehicle  the 
carrier  may  eject  them.^ 

§  612.  Right  to  separate  passengers  according  to  sex. — While 
it  is  true  that  every  person  has  the  right  to  be  transported  by 
the  carrier,  and,  if  he  complies  with  its  reasonable  regulations 
and  is  a  fit  person  for  carriage,  has  the  right  to  enter  its  vehicles 
as  a  passenger,  it  has  been  held  that  a  regulation  which  separates 
the  passengers  according  to  sex  or  which  separates  passen- 
gers into  different  classes  according  to  the  amount  of  fare 
they  pay  or  are  charged,  is  a  reasonable  regl^lation.^  And 
it  has  been  held  that  a  regulation  that  none  but  ladies,  or  ladies 

L.  356,  46  All.  1099;  Spanglor  v.  Freedon  v.  N.  Y.  Cent.  etc.  Co., 
St.  Joseph,  etc.  Ry.  Co.,  68  Kan.  48  N.  Y.  S.  584. 
46,  74  Pac.  607,  63  L.  R.  A.  634.  »  Day  v.  Owen,  5  Mich.  520.  In 
In  Fewings  v.  Mendenhall,  88  Chilton  v.  St.  Louis,  etc.  R.  Co., 
Minn.  336,  93  N.  W.  127,  60  L.  R.  114  Mo.  88,  19  L.  R.  A.  269,  held: 
A.  601,  street  car  company  was  "A  railroad  corporation  as  a  corn- 
held  not  liable  for  an  injury  of  mon  carrier  has  no  right  to  make 
a  passenger  struck  by  a  stone  unjust  discrimination  against  any 
thrown  by  a  strike  sympathizer,  passenger,  whatever  his  color, 
the  company  not  having  any  con-  race  or  sex;  and  any  regulation 
trol   over   such   persons.  which    would    have    unjustly    dis- 

^  Wood  v.  Railway  Co.,  101  Ky.  criminated    against    the    plaintiff 

703.  on  account  of  color  alone,  would 

8  Hutchinson   on   Carriers,    539;  have   been   contrary   to   the   prin- 

Pearson  v.  Duane,  4  Wall.  (U.  S.)  ciples  of  the  common  law  as  well 

605;    Stevenson    v.    West    Seattle,  as   the  provision  of  the  constitu- 

etc.  Co.,  22  Wash.  84,  60  Pac.  51;  tion.     If  the  regulation  was  rea 

42 


658  CARRIERS   OF  PASSENGERS.  [§    613. 

accompanied  by  male  attendants  or  friends,  shall  be  admitted  to 
certain  cars,  is  reasonable  and  valid.^°  The  carrier,  however, 
must  furnish  a  place  for  the  passenger,  and  where  a  seat  could 
not  be  found  elsewhere  it  was  held  that  a  passenger  might  enter 
the  ladies'  car  from  which  otherwise  the  regulations  would  ex- 
clude him.'^ 

§  613.  Separation  of  races  a  reasonable  regulation. — In  the 
absence  of  statutes,  any  regulation  of  the  common  carrier  is 
tested  by  its  reasonableness;  and  so  a  regulation  of  the  common 
carrier  requiring  the  separation  of  colored  from  white  passen- 
gers, if  there  are  no  statutes  upon  the  subject,  would  wholly  de- 
pend for  its  legal  enforcement  upon  its  reasonableness.  Upon 
this  subject  the  rulings  have  generally  been  that  the  carrier  is 
obliged  to  furnish  equal  accommodations  to  each  class.  That  is 
to  say,  if  colored  passengers,  by  a  regulation  of  the  company, 
are  not  allowed  to  ride  in  the  cars  provided  for  white  passengers, 
it  is  incumbent  upon  the  company  to  furnish  as  equally  good 
and  convenient  accommodations  for  such  passengers  in  another 
part  of  its  train  or  vehicle,  as  it  is  "equality  of  rights,  and  not 
identity  or  community  of  rights,"  that  is  vouchsafed.  The  sev- 
eral states  may  no  doubt  enact  statutes  upon  this  subject  for- 
bidding any  discrimination  or  separation,  but  it  seems  that  such 
a  statute  would  be  void  when  applied  to    railroad    companies 

sonable  and  just,  no  rights  guar-  ic  Peck   v.    Railway   Co.,    70    N. 

anteed     her     were     denied.     The  Y.   587. 

civil  rights  to  which  plaintiff,  as  n  Bass  v.  Railway  Co.,  36  Wis. 
a  passenger,  was  entitled  from  de-  4,^0;  State  v.  Overton,  27  N.  J.  L. 
fendant  as  a  carrier  was  a  car-  435.  As  to  separation  of  passen- 
riage  in  a  car  in  which  accom-  gers  on  account  of  color,  see  Hurd 
modations,  safety  and  protection  v.  Railway  Co.,  3  Interstate  Com. 
were  afforded  her  equal  to  what  Rep.  Ill,  where  it  was  held  by 
was  afforded  other  passengers  Commissioner  Bragg  that  the  de- 
paying  the  same  fare."  Civil  fendant  is  justified  in  so  doing  if 
Rights  Cases,  109  U.  S.  3;  Hutch-  the  compartment  of  the  car,  or 
inson  on  Carriers,  sec.  542;  Hall  the  car,  as  the  case  may  be,  is 
V.  De  Cuir,  95  U.  S.  485;  West  equal  in  safety  of  construction, 
Chester,  etc.  Co.  v.  Miles,  55  Pa.  comfort  and  accommodation,  and 
St.  209.  In  Iowa  it  was  held  that  the  protection  afforded  to  passen- 
a  steamboat  company  was  liable  gers,  to  what  is  found  in  other 
for  removing  a  negro  passenger  cars  in  which  white  women  and 
from  a  dinner  table  which  had  men  travel  on  the  same  train, 
been  provided  and  intended  for  all  holding  first-class  tickets,  for 
white  passengers  exclusively.  Co-  which  the  same  fare  is  paid, 
ger  V.  Packet  Co.,  37  Iowa,  145. 


§  613.] 


WHO  MUST  CARRIER  ACCEPT  AND  CARRY. 


659 


operating  lines  of  railroad  extending  through  different  states; 
that  it  would  not  apply  to  interstate  transportation.^^ 

This  question  has  often  been  before  the  courts,  it  being  urged 
that  this  discrimination  was  illegal  because  of  the    fourteenth 


12  Hall  V.  De  Cuir,  95  U.  S.  485. 
Chief  Justice  Waite,  in  Hall  v. 
De  Cuir,  in  rendering  the  opinion 
in  a  case  where  this  question  was 
involved,  says:  "If  each  state 
was  at  liberty  to  regulate  the 
conduct  of  carriers  while  within 
its  jurisdiction,  the  confusion 
likely  to  follow  could  not  but  be 
productive  of  great  inconvenience 
and  unnecessary  hardship.  Each 
state  could  provide  for  its  own 
passengers  and  regulate  the 
transportation  of  its  own  freight, 
regardless  of  the  interests  of  oth- 
ers. Nay  more,  it  could  prescribe 
rules  by  which  the  carrier  must 
be  governed  within  the  state  in  re- 
spect to  passengers  and  property 
brought  from  without.  On  one 
side  of  the  river  or  its  tributaries 
he  might  be  required  to  observe 
one  set  of  rules,  and  on  the  other 
another.  Commerce  cannot  flour- 
ish in  the  midst  of  such  embar- 
rassments. No  carrier  of  passen- 
gers can  conduct  his  business  with 
satisfaction  to  himself  or  com- 
fort to  those  employing  him,  if, 
on  one  side  of  a  state  line,  his 
passengers,  both  white  and  col- 
ored, must  be  permitted  to  oc- 
cupy the  same  cabin,  and  on  the 
other  be  kept  separate.  Uniform- 
ity in  the  regulations  by  which 
he  is  to  be  governed  from  one 
end  to  the  other  of  his  route  is 
a  necessity  in  his  business,  and 
to  secure  it  congress,  which  is  un- 
trammeled  by  state  lines,  has 
been  invested  with  the  exclusive 
legislative  power  of  determining 
what   such    regulations    shall   be. 


If  this  statute  can  be  enforced 
against  those  engaged  in  inter- 
state commerce,  it  may  be  as  well 
against  those  engaged  in  for- 
eign; and  the  master  of  a  ship 
clearing  from  New  Orleans  for 
Liverpool,  having  passengers  on 
board,  would  be  compelled  to 
carry  all,  white  and  colored,  in 
the  same  cabin  during  his  pas- 
sage down  the  river,  or  be  subject 
to  an  action  for  damages,  'ex- 
emplary as  well  as  actual,'  by  any 
one  who  felt  himself  aggrieved 
because  he  had  been  excluded  on 
account  of  his  color.  This  power 
of  regulation  may  be  exercised 
without  legislation  as  well  as 
with  it.  By  refraining  from  ac- 
tion, congress,  in  effect,  adopts  as 
its  own  regulations  those  which 
the  common  law  or  the  civil  law, 
where  that  prevails,  has  provided 
for  the  government  of  such  busi- 
ness, and  those  which  the  states, 
in  the  regulation  of  their  domes- 
tic concerns,  have  established  af- 
fecting commerce,  but  not  regu- 
lating it  within  the  meaning  of 
the  constitution." 

And  Mr.  Justice  Clifford  in  the 
same  case  says:  "Repeated  de- 
cisions of  this  court  have  deter- 
mined that  the  power  to  regulate 
commerce  embraces  all  the  in- 
struments by  which  such  com- 
merce may  be  conducted;  and  it 
is  settled  law  that  where  the  sub- 
ject to  which  the  power  applies 
is  national  in  its  character,  or  of 
such  a  nature  as  to  admit  of  uni- 
formity of  regulation,  the  power 
is  exclusive  of  all  state  authority. 


660 


CARRIERS  OP  PASSENGERS. 


§  613. 


amendment  of  the  constitution,  which  is  as  follows:  "No  state 
shall  make  or  enforce  any  law  which  shall  abridge  the  privileges 
or  immunities  of  citizens  of  the  United  States;  nor  shall  any- 
state  deprive  any  person  of  life,  liberty  or  property  without  due 


Whatever  subjects  of  this  power, 
says  Mr.  Justice  Curtis,  are  in 
their  nature  national,  or  admit 
only  of  one  uniform  system  or 
plan  of  regulation,  may  justly  be 
said  to  be  of  such  a  nature  as  to 
require  exclusive  legislation  by 
congress.  Difficulty  may  attend 
the  effort  to  prescribe  any  defini- 
tion which  will  guide  to  a  correct 
result  in  every  case;  but  it  is 
clear  that  a  regulation  which 
irtposes  burdensome  or  impossi- 
ble conditions  on  those  engaged 
in  commerce,  whether  with  for- 
eign nations  or  among  the  sev- 
eral states,  must  of  necessity  be 
national  in  its  character.  .  .  . 
Such  a  subject  is  in  its  nature  na- 
tional, and  admits  of  only  one 
uniform  system  or  plan  of  regu- 
lation. Unless  the  system  or  plan 
of  regulation  is  uniform,  it  is  im- 
possible of  fulfillment.  Missis- 
sippi may  require  the  steamer 
carrying  passengers  to  provide 
two  cabins  and  tables  for  passen- 
gers, and  may  make  It  a  penal 
offense  for  white  and  colored  per- 
sons to  be  mixed  ini  the  same 
cabin  or  at  the  same  table.  If 
Louisiana  may  pass  a  law  forbid- 
ding such  steamer  from  having 
two  cabins  and  two  tables, — one 
for  white  and  the  other  for  col- 
ored persons, — it  must  be  admit- 
ted that  Mississippi  may  pass  a 
law  requiring  all  passenger 
steamers  entering  her  ports  to 
have  separate  cabins  and  tables, 
and  make  it  penal  for  white  and 
colored  persons  to  be  accommo- 
dated in  the  same  cabin  or  to  be 


furnished  with  meals  at  the  same 
table.  Should  state  legislation  in 
that  regard  conflict,  then  the 
steamer  must  cease  to  navigate 
between  ports  of  the  states  hav- 
ing such  conflicting  legislation, 
or  must  be  exposed  to  penalties 
at  every  trip.  Those  who  framed 
the  constitution  never  intended 
that  navigation,  whether  foreign 
or  among  the  states,  should  be 
exposed  to  such  conflicting  legis- 
lation; and  it  was  to  save  those 
who  follow  that  pursuit  from 
such  exposure  and  embarrass- 
ment that  the  power  to  regulate 
such  commerce  was  vested  exclu- 
sively in  congress.  .  .  .  Steam- 
ers carrying  passengers  for  hire 
are  bound,  if  they  have  suitable 
accommodation,  to  take  all  who 
apply  unless  there  is  objection  to 
the  character  or  conduct  of  the 
applicant.  Applicants  to  whom 
there  is  no  such  valid  objection 
have  a  right  to  a  passage,  but  it 
is  not  an  unlimited  right.  On 
the  contrary,  it  is  subject  to  such 
reasonable  regulations  as  the  pro- 
prietors may  prescribe  for  the 
due  accommodation  of  passengers 
and  the  due  arrangement  of  the 
business  of  the  carrier.  Such 
proprietors  have  not  only  that 
right,  but  the  further  right  to 
consult  and  provide  for  their  own 
interests  in  the  management  of 
the  vessel  as  a  common  incident 
to  their  right  of  property.  They 
are  not  bound  to  admit  passen- 
gers on  board  who  refuse  to  obey 
the  reasonable  regulations  of  the 
vessel,  or  who  are  guilty  of  gross 


§  613.] 


WHO  MUST  CARRIER  ACCEPT  AND  CARRY. 


661 


process  of  law,  nor  deny  to  any  person  within  its  jurisdiction 
the  equal  protection  of  the  laws."  But  the  rulings  have  been 
that  this  amendment  does  not  of  itself  give  congress  even  the 
power  to  protect  by  legislation  the  rights  pertaining  to  state  or 


and  vulgar  habits  of  conduct,  or 
who  make  disturbances  on  board, 
or  whose  characters  are  doubt- 
ful, dissolute,  suspicious,  or  un- 
equivocally bad.  Nor  are  they 
bound  to  admit  passengers  on 
board  whose  object  it  is  to  inter- 
fere with  the  interests  of  the 
patronage  of  the  proprietors  so  as 
to  make  their  business  less  lucra- 
tive or  their  management  less  ac- 
ceptable to  the  public." 

"  Corresponding  views  are  ex- 
pressed by  the  supreme  court  of 
Michigan  in  an  analogous  case, 
in  which  the  distinction  between 
the  right  of  an  applicant  to  be 
admitted  on  board,  and  his  claim 
to  dictate  what  part  of  the  ves- 
sel he  shall  occupy,  is  clearly 
pointed  out.  Referring  to  that 
subject,  the  court  say  the  right 
to  be  carried  is  one  thing,  and  the 
privilege  of  a  passenger  on  board 
as  to  what  part  of  the  vessel  may 
be  occupied  by  him  is  another 
and  a  very  different  thing;  and 
they  add,  that  it  is  the  latter  and 
not  the  former  which  is  subject 
to  reasonable  rules  and  regula- 
tions, and  is,  where  such  rules 
and  regulations  exist,  to  be  deter- 
mined by  the  proprietors.  Dam- 
ages were  claimed  in  that  case 
for  refusing  the  plaintiff  the 
privilege  of  the  cabin;  but  the 
court  held  that  the  refusal  was 
nothing  more  or  less  than  deny- 
ing him  certain  accommodations 
from  which  he  was  excluded  by 
the  rules  and  regulations  of  the 
steamer.  Proprietors  of  the  kind 
may  make  rules  and  regulations. 


but  they  must  be  reasonable;  and 
the  court  held  in  that  case  that 
to  be  so  they  should  have  for  their 
object  the  accommodation  of  the 
passengers,  including  everything 
to  render  the  transportation  most 
comfortable  and  least  annoying, 
not  to  one  or  two  or  any  given 
number  carried  at  any  particular 
time,  but  to  the  great  majority 
ordinarily  transported;  and  they 
also  held  that  such  rules  and  reg- 
ulations should  be  of  a  permanent 
nature,  and  not  be  made  for  a 
particular  occasion  or  emergency. 
Special  and  important  duties  in- 
dubitably are  imposed  upon  car- 
riers of  passengers  for  the  bene- 
fit of  the  traveling  public;  but  it 
must  not  be  forgotten  that  the 
vehicles  and  vessels  which  such 
carriers  use  do  not  belong  to  the 
public.  They  are  private  property, 
the  use  and  enjoyment  of  which 
belong  to  the  proprietors.  Con- 
cede what  is  undoubtedly  true, 
that  the  use  and  employment  of 
such  vehicles  and  vessels,  during 
the  time  they  are  allowed  the  priv- 
ileges of  common  carriers,  may  be 
subjected  to  such  conditions  and 
obligations  as  the  nature  of  their 
employment  requires  for  the  com- 
fort, security  and  safety  of  passen- 
gers, still  the  settled  rules  of  con- 
stitutional law  forbid  that  a  state 
legislature  may  invade  the  do- 
minion of  private  right  by  arbi- 
trary restrictions,  requirements  or 
limitations,  by  which  the  property 
of  the  owners  or  possessors  would 
be  virtually  stripped  of  all  utility 
or  value  if  bound  to  comply  with 


662 


CARRIERS  OP  PASSENGERS. 


:§  613. 


natural  citizenship ;  that  its  inhibitions  are  directed  solely  against 
action  by  the  states,  and  not  against  actions  by  individuals;  and 
that  therefore  congress  had  no  power  to  protect  rights  claimed 
by  colored  citizens  to  occupy  places  in  the  carrier's  vehicle  con- 
trary to  the  regulation  under  discussion.^^ 

In  the  Civil  Rights  Cases  ^*  Mr.  Justice  Bradley  uses  this  lan- 
guage :  "It  is  state  action  of  a  particular  character  that  is  pro- 
hibited.    Individual  invasion   of   individual   rights   is    not    the 


the  regulations.  Both  steamboats 
and  railways  are  modern  modes  of 
conveyance;  but  Shaw,  C.  J.,  de- 
cided that  the  rules  of  common 
law  were  applicable  to  them,  as 
they  take  the  place  of  other  modes 
of  carrying  passengers,  and  he 
held  that  they  have  authority  to 
make  reasonable  and  suitable  reg- 
ulations as  regards  passengers  in- 
tending to  pass  and  repass  in  their 
vehicles  or  vessels.  They  are,  said 
the  chief  justice  in  that  case,  in  a 
condition  somewhat  similar  to 
that  of  an  innkeeper,  whose  prem- 
ises are  open  to  all  guests.  Yet 
he  is  not  only  empowered  to  make 
such  proper  arrangements  as  will 
promote  his  own  interests,  but  he 
is  bound  to  regulate  his  house  so 
as  to  preserve  order,  and,  if  prac- 
ticable, prevent  breaches  of  the 
peace.  Cases  of  like  import  are 
quite  numerous,  and  the  supreme 
court  of  Pennsylvania  decided  di- 
rectly that  a  public  carrier  may 
separate  passengers  in  his  con- 
veyance; and  they  deduce  his 
power  to  do  so  from  his  right  of 
private  property  in  the  means  of 
conveyance,  and  the  necessity 
which  arises  for  such  a  regulation 
to  promote  the  public  interest. 
Speaking  to  that  point,  they  say 
that  the  private  means  the  car- 
rier uses  belong  wholly  to  him- 
self; and  they  held  the  right  of 
control  in  that  regard  as  neces- 
sary to  enable  the  carrier  to  pro- 


tect his  own  interests,  and  to  per- 
form his  duty  to  the  traveling 
public.  His  authority  in  that  re- 
gard, as  that  court  holds,  arises 
from  his  ownership  of  the  prop- 
erty, and  his  public  duty  to  pro- 
mote the  comfort  and  enjoyment 
of  those  traveling  in  his  convey- 
ance. Guided  by  those  veiws,  the 
court  held  that  it  is  not  an  un- 
reasonable regulation  to  seat  pas- 
sengers so  as  to  preserve  order 
and  decorum,  and  to  prevent  con- 
tacts and  collisions  arising  from 
natural  or  well-known  customary 
repugnancies  which  are  likely  to 
breed  disturbances  where  white 
and  colored  persons  are  huddled 
together  without  their  consent." 
Cooley  V.  Board  of  Wardens,  12 
How.  299;  Henderson  v.  Mayor  of 
New  York,  92  U.  S.  259;  Jencks 
V.  Coleman,  2  Sumn.  221;  Day  v. 
Owen,  5  Mich.  520;  Commonwealth 
V.  Powers,  7  Mete.  (Mass.)  601; 
Hibbard  v.  New  York  &  Erie  Ry. 
Co.,  15  N.  Y.  455;  111.  Cent.  Ry. 
Co.  V.  Whittemore,  43  111.  420; 
Vinton  v.  Middlesex  Ry.  Co.,  11 
Allen  (Mass.)  304;  West  Cheste? 
&.  Phil.  Ry.  Co.  v.  Miles,  55  Pa.  St. 
209. 

13  Smoot  V.  Kentucky  Cent.  R. 
Co.,  13  Fed.  337;  United  States  v. 
Washington,  20  Fed.  630,  4  Wood, 
349;  Cully  v.  B.  &  O.  Ry.  Co.,  Fed. 
Cases  No.  3466  (1  Hughes,  536). 

14  109  U.  S.  3,  11. 


§    613.]  WHO  MUST  CARRIER  ACCEPT  AND  CARRY.  663 

subject-matter  of  the  amendment.  It  has  a  deeper  and  broader 
scope.  It  nullifies  and  makes  void  all  state  legislation  and 
state  action  of  every  kind  which  impairs  the  privileges  and  im- 
munities of  citizens  of  the  United  States,  or  which  injures  them 
in  life,  liberty  or  property  without  due  process  of  law,  or  which 
denies  to  any  of  them  the  equal  protection  of  the  laws.  It  not 
only  does  this,  but  in  order  that  the  national  will  thus  declared 
may  not  be  a  mere  hrutum  fulmen,  the  last  section  of  the  amend- 
ment invests  congress  with  power  to  enforce  it  by  appropriate 
legislation.  To  enforce  what  ?  To  enforce  the  prohibition.  To 
adopt  appropriate  legislation  for  correcting  the  effects  of  such 
prohibited  state  laws  and  state  acts,  and  thus  to  render  them 
effectually  null,  void  and  innocuous.  This  is  the  legislative 
power  conferred  upon  congress,  and  this  is  the  whole  of  it." 
And  it  was  therefore  held  that  congress  could  not  legislate  upon 
the  subjects  that  are  within  the  dominion  of  state  legislatures, 
and  therefore  the  act  of  March  1,  1875,  declaring  that  all  col- 
ored citizens  shall  have  the  same  accommodations  in  inns,  public 
places,  conveyances,  etc.,  is  unconstitutional,  for  it  belongs  to  the 
states.  In  West  Chester,  etc.  Co.  v.  Miles  ^^  it  was  held  that  ''no 
one  can  be  excluded  from  carriage  by  a  public  carrier  on  account 
of  color,  religious  belief,  political  relations  or  prejudices."  But 
as  to  the  separation  of  white  and  colored  passengers,  where  the 
accommodations  furnished  to  each  were  the  same,  and  in  all  re- 
spects comfortable,  safe  and  convenient,  and  not  inferior  in  any 
respect  the  one  to  the  other,  the  court  say :  ' '  This  question  must 
be  decided  upon  reasonable  grounds.  If  there  be  no  clear  and 
reasonable  difference  to  base  it  upon,  separation  cannot  be  jus- 
tified by  mere  prejudice.  Nor  is  merit  a  test.  .  .  .  The 
right  of  the  carrier  to  separate  his  passengers  is  founded  upon 
two  grounds — his  right  of  private  property  in  the  means  of  con- 
veyance, and  the  public  interest.     The  private  means  he  uses 

15  55  Pa.  St.  209.     "At  common  Am.   Rep.   641.     And  it  has  been 

law  a  railroad  company,  as  a  com-  held   that,    independently   of   con- 

mon  carrier  of  passengers,   could  stitutional  or  statutory  provisions, 

not   capriciously   discriminate   be-  innkeepers   and    common   carriers 

tween    passengers   on   account   of  are  bound  to  furnish  equal  facili- 

their  nationality,   color,   race,   so-  ties  to  all  without  discrimination, 

cial   possession   or   their   political  because     public     policy     requires 

or  religious  beliefs."   Chicago,  etc.  them   to  do  so.     People  v.   King, 

Ry.  Co.  V.  Williams,  55  111.  185,  8  110  N.  Y.  418,  6  Am.  St.  Rep.  389. 


664  CARRIERS  OF  PASSENGERS.  [§  613. 

belong  wholly  to  himself,  and  imply  the  right  of  control  for  the 
protection  of  his  own  interest,  as  well  as  the  performance  of  his 
public  duty.  He  may  use  his  property,  therefore,  in  a  reasona- 
ble manner.  It  is  not  an  unreasonable  regulation  to  seat  passen- 
gers so  as  to  preserve  order  and  decorum,  and  to  prevent  con- 
tacts and  collisions  arising  from  natural  or  well-known  custom- 
ary repugnancies,  which  are  likely  to  breed  disturbances  by  a 
promiscuous  sitting.  This  is  a  proper  use  of  the  right  of  pri- 
vate property,  because  it  tends  to  protect  the  interests  of  the 
carrier  as  well  as  the  interests  of  those  he  carries.  If  the  ground 
of  regulation  be  reasonable,  courts  of  justice  cannot  interfere 
with  his  right  of  property.  The  right  of  the  passenger  is  only 
that  of  being  carried  safely,  and  with  a  due  regard  to  his  per- 
sonal comfort  and  convenience,  which  are  promoted  by  a  sound 
and  well-regulated  separation  of  passengers.  An  analogy  and 
an  illustration  are  found  in  the  case  of  an  innkeeper  who,  if  he 
have  room,  is  bound  to  entertain  proper  guests,  and  so  a  carrier 
is  bound  to  receive  passengers.  But  a  guest  in  an  inn  cannot 
select  his  room  or  his  bed  at  pleasure;  nor  can  a  voyager  take 
possession  of  a  cabin  or  a  berth  at  will,  or  refuse  to  obey  the 
reasonable  orders  of  the  captain  of  a  vessel.  ...  If  a 
right  of  private  property  confers  no  right  of  control,  who  shall 
decide  a  contest  between  passengers  for  seats  or  berths?  Courts 
of  justice  may  interpose  to  compel  those  who  perform  a  business 
concerning  the  public,  by  the  use  of  private  means,  to  fulfill 
their  duty  to  the  public — but  not  a  whit  bej'ond.  The  public 
also  has  an  interest  in  the  proper  regulation  of  public  convey- 
ances for  the  preservation  of  the  public  peace.  A  railroad  com- 
pany has  the  right  and  is  bound  to  make  reasonable  regulations 
to  preserve  order  in  their  cars.  It  is  the  duty  of  the  conductor 
to  repress  tumults  as  far  as  he  reasonably  can,  and  he  may,  on 
extraordinary  occasions,  stop  his  train  and  eject  the  unruly  and 
tumultuous.  ...  In  order  to  preserve  and  enforce  his 
authority  as  the  servant  of  the  company  it  must  have  a  power  to 
establish  proper  regulations  for  the  carriage  of  passengers.  It 
is  much  easier  to  prevent  difficulties  among  passengers  by  regula- 
tions for  their  proper  separation  than  it  is  to  quell  them." 

It  would  therefore  seem  to  be  the  rule  that  state  legislatures 
may  regulate  this  question  by  statute  where  the  lines  of  trans- 
portation are  within  their  own  state,  but  that  they  have  no 
power  where  the  companies'  lines  are  what  may  be  called  inter- 


§    615.]  WHO  MUST  CARRIER  ACCEPT  AND  CARRY.  665 

state  lines,  and  so  very  many  of  the  states  have  enacted  statutes 
upon  the  subject.^^ 

Certain  Duties  Incumbent  Upon  the  Carrier. 

§  614.  Implied  obligation. — While  the  carrier  of  passengers 
is  not  a  guarantor  of  the  safety  of  the  passenger  he  carries,  and 
has  a  right  to  rely  upon  his  using  at  least  ordinary  intelligence 
by  way  of  taking  care  of  himself  and  avoiding  injury,  neverthe- 
less the  degree  of  diligence  required  of  the  carrier  is  very  great. 
He  is  under  an  implied  obligation  to  look  after  the  safety  of  his 
patrons,  and  to  do  all  that  he  can  do  to  safely  transport  them. 

"The  carrier,"  says  Mr.  Hutchinson,  quoting  with  approval 
from  Christie  v.  Origgs,^''  "is  bound  to  provide  for  his  safe  con- 
veyance 'as  far  as  human  care  and  foresight  will  go,'  and  this, 
or  equivalent  language,  has  been  employed  almost  universally  in 
subsequent  cases  in  which  the  obligation  of  the  passenger  carrier 
has  been  defined."  And  in  Palmer  v.  Canal  Co.^^  the  court  say: 
"The  carrier  must  use  the  utmost  care  and  diligence  which  hu- 
man prudence  and  foresight  will  suggest."  So  it  follows  that 
this  high  degree  of  diligence,  this  duty  to  exercise  the  very  high- 
est degree  of  care,  obtains  in  the  operation  of  almost  every  de- 
partment of  the  carrier's  business,  this  required  diligence  only 
being  modified  as  the  surroundings  are  more  or  less  dangerous. 

§  615.  Vehicles,  machinery,  roadways,  tracks,  etc. — The  ve- 
hicle, whether  it  be  a  stage-coach,  a  steamboat  or  a  railroad  train, 
must  be  safe  and  suitable  for  the  purpose  for  which  it  is  em- 
ployed. The  motive  power  must  be  sufficient  and  suitable  for  the 
business ;  the  roadway  and  tracks  must  be  in  condition  fit  for  the 
undertaking;  and  it  is  the  duty  of  the  carrier  to  see  that  all 
these  are  safe  and  adapted  to  the  purpose  for  which  they  are 
used.  Not  only  is  it  the  duty  of  the  carrier  to  furnish  safe  ve- 
Tiicles,  machinery,  roadways  and  tracks,  but  he  is  required  to 

18  "A  rule  providing  for  the  sep-  Ry.  Co.  v.  Mississippi,  etc.  Co., 
aration  of  white  and  colored  pas-  133  U.  S.  587;  Plessy  v.  Ferguson, 
sengers  in  cars  in  all  respects  163  U.  S.  537;  Anderson  v.  Louis- 
equal  in  comfort,  held  to  be  rea-  ville,  etc.  Ry.  Co.,  62  Fed.  46.  And 
sonable."  Chesapeake,  etc.  Co.  v.  see  cases  collected.  6  Am.  &  Eng. 
Wells,  85  Tenn.  613;  Chicago,  etc.  E'ncycl.  of  Law  (2d  ed.),  82,  83. 
Ry.  Co.  V.  Williams,  55  111.  185;  i"  2  Camp.  79;  Hutchinson  on 
People  V.  Gallagher,  93  N.  Y.  438,  Carriers,  500,  and  cases  cited. 
45  Am.  Rep.  232;   Louisville,  etc.          is  120  N.  Y.  170. 


66G  CAKRIERS  OP  PASSENGERS.  [§'   617. 

furnish  them  with  the  necessary  equipments  for  the  comfort  of 
the  passengers ;  as,  for  example,  the  cars  must  be  suitably  seated 
and  lighted,  with  suitable  heating  apparatus,  with  necessary  re- 
tiring rooms;  and  if  it  be  a  sleeping-car  or  boat  upon  which 
night  journeys  are  taken,  it  must  be  provided  with  suitable  sup- 
plies for  its  berths  and  sleeping  apartments,  such  as  the  ordi- 
nary passenger  would  require.^® 

§  616.  Stational  facilities. — The  carrier  is  required  to  furnish 
proper  and  suitable  stational  facilities,  such  as  platforms,  wait- 
ing-rooms, and  the  like ;  such  facilities  as  the  particular  business 
in  which  he  is  engaged  requires.  He  must  so  keep  the  stations 
that  passengers  may  with  safety  enter  or  leave  his  vehicles. 
This  liability  grows  out  of  the  implied  invitation  of  the  carrier 
to  persons  to  come  to  their  stations  and  avail  themselves  of  the 
transportation  they  offer.  This  duty  is,  however,  more  or  less 
modified  by  the  place  where  the  stations  or  stopping  points  may 
be.  As,  for  example,  more  care  is  demanded  and  required  at  a 
station  in  a  large  city,  where  a  great  many  passengers  daily  con- 
gregate, depart  and  arrive,  than  at  a  country  cross-road  or  at  a 
mere  flag-station  where  trains  seldom  stop.^" 

§  617.  Duty  in  managing  and  running  its  trains  or  vehicles. 
The  duty  that  is  imposed  upon  the  carrier  of  passengers  to 
manage  its  trains,  boats  or  vehicles  is  perhaps  the  most  impor- 
tant of  all.  Railroad  trains  that  are  driven  through  the  coun- 
try at  a  high  rate  of  speed,  governed  and  directed  by  the  com- 
pany's servants,  and  carrying  hundreds  and  thousands  of  hu- 
man beings;  the  immense  lines  of  boats  that  plough  the  ocean 
under  the  management  of  the  servants  and  agents  of  the  great 
carrier  companies,  but  evidence  the  justice  and  necessity  of  the 
ride  of  law  that  holds  them  to  the  utmost  care  and  foresight — 
that  highest  degree  of  diligence  and  prudence  which  human 
foresight  will  suggest;  a  diligence  and  care  that  is  commensu- 
rate with  the  dangerous  and  important  business  that  is  being 
carried  on.-^     "And  it  has  been  held  that  public    policy    and 

19  Wood  V.  Railroad  Co.,  84  Ga.  human  foresight  and  reasonable 
363,  10  S.  E.  907.  care  will  permit.    Ryan  v.  Gilmer, 

20  Railway  Co.  v.  Stacey,  68  2  Mont  518,  25  Am.  Rep.  714. 
Miss.  463.  "Carriers   of   passengers   are   held 

21  In  the  absence  of  special  con-  to  the  exercise  of  the  utmost  or 
tracts  carriers  are  required  to  highest  degree  of  care  and  dili- 
carry     passengers     as     safely     as  gence  for  the  safety  of  passengers 


§    618.]  WHO  MUST  CARRIER  ACCEPT  AND  CARRY.  667 

safety  require  that  a  carrier  should  be  held  to  the  greatest  possi- 
ble degree  of  care  and  diligence,  and  that  the  personal  safety  of 
passengers  should  not  be  left  to  the  support  of  chance  or  the 
negligence  of  a  careless  agent. ' '  ^- 

§  618.  The  duty  of  passengers. — Duties  and  responsibilities 
rest  not  alone  upon  the  carrier,  but,  as  has  been  suggested,  the 
passenger  has  duties  that  are  incumbent  upon  him.  He  is  an 
intelligent  being  endowed  with  faculties  that  when  properly 
used  assist  him  to  shun  danger  and  avoid  its  consequences.  These 
faculties  he  must  exercise.  He  cannot  negligently  be  the  cause 
or  contribute  to  the  cause  of  the  injury.  From  him  is  required 
at  least  ordinary  diligence.  He  must  not  occupy  dangerous  and 
unusual  places  upon  the  carrier's  conveyance — places  that  an 
ordinarily  prudent  man  would  not  occupy ;  as,  for  example,  rid- 
ing upon  the  bumpers  between  freight  cars,  under  the  cars  upon 
the  framework,  on  the  top  of  the  cars,  or,  in  some  cases  upon  the 
platform  or  as  a  stowaway  on  a  steamboat,  or  in  any  such  like 
places.  His  duty  is  to  observe  the  ordinary  and  reasonable 
tregulations  of  the  carrier,  and  failing  to  do  so,  the  carrier  may 
be  relieved  of  liability,  even  though  the  injury  occurred  by  rea- 
son of  negligence  on  his  part. 

that  is  consistent  with  the  mode  22  Bryan  v.   Pacific  Ry.   Co.,   32 

of  conveyance  employed."     North      Mo.  App.  228. 
Chicago   Street  Ry.   Co.   v.   Cook, 
145  111.  551. 


CHAPTER  III. 


THE  PASSENGER  CARRIER'S  LIABILITY. 


I.  Genebal  Principles   Govekninq 

Liability. 

S  619.  The  purpose  of  the  chapter. 

620.  The  basis  of  the  liability. 

621.  Diligence    in    the    employ- 

ment of  servants. 

622.  Safe  and  sufficient  means  of 

transportation. 

623.  Carrier's    liability    for    in- 

jury of  servants  result- 
ing from  negligence  of 
fellow  servant. 

624.  The    rule    stated— Its 

origin. 

625.  When     the     master's 

negligence  contributes  to 
the  injury. 

626.  "When  the  injury  is  the  re- 

sult of  the  negligence  of 
an  incompetent  fellow 
servant. 

627.  Superior    servant    rule    as 

contradistinguished  from 
the  alter  ego  or  vice-prin- 
cipal doctrine. 

628.  Act  of  congress  to  reg- 
ulate liability. 

629.  ■      Passenger  elevators. 

630.  Bound  to  adopt  most 

approved  machinery. 

631.  Latent  defects. 

632.  English  rule. 

633.  Defects      discoverable 

by  manufacturer. 

II.  LiABiLirY  Growing  Out  of 
Duty  to  Passenger  While 
in  Transit. 

634.  The     degree    of    care     re- 

quired. 


§  635.  Depots  —  Waiting  rooms — 
Approaches  and  exits 
from  premises  and  ve- 
hicles. 

636.  Same  subject. 

637.  Overloading  and  overcrowd- 

ing vehicles. 

638.  Liability     of     carrier     for 

abuse  of  passengers. 

639.  Fares  —  Tickets — Contracts 

for  carriage. 

640.  Where  the  carrier  or  agent 

is  at  fault. 

641.  Exhibition    and    sur- 
render of  tickets. 

642.  Lost  or  mislaid   tick- 
ets. 

643.  Stop-over     tickets  — 

Time  limit — Train  limit, 
etc. 

644.  Tickets      over      connecting 

lines. 

645.  Delayed  by  wreck  or 

by  the  fault  of  the  car- 
rier. 

646.  Tickets,    passes    and    other 

transportation  fraudu- 
lently obtained  or  fraud- 
ulently used. 

647.  Sleeping-car  companies. 

648.  Not  liable  as  innkeepers. 

III.  Ejection  of  Passengers  and 
Intruders  from  the  Ve- 
hicle OF  the  Carrier. 

649.  The    right  —  The    Cause  — 

The  manner — By  whom. 

650.  The  causes  numerous. 

651.  Passenger's     reliance 

upon      statements      and 


§  620.] 


PASSENGER   CARRIER  S   LIABILITY. 


669 


promises  of  servants  and 
agents  of  the  carrier. 

652.  Tendering    fare    to     avoid 

ejecting. 

653.  '       The   manner  of  ejec- 
tion. 

654.  The   condition   of  the   pas- 

senger must  be  taken  in- 
to account. 

IV.  When    the    Cabeiee    is    Ex- 
cused. 

655.  When  caused  by  the  act  of 

God. 

656.  The  public  enemy. 


§  657. 
658. 

659, 

660. 


661. 

662, 
663, 
664, 


Contributory   negligence. 

Strangers,  trespassers, 

intruders. 

Failure  to  warn  pas- 
sengers of  dangers. 

A  question  of  fact  for 

the   jury    or   of    law   for 
the  court. 

Whether  a  question  of 

law  or  fact. 

Same  subject. 

When  excused 

Failure  to  perform  contract 

of  carriage  within  stipu- 
lated or  reasonable  time. 


§  619.  The  purpose  of  the  chapter. — The  discussion  of  the 
liability  of  the  passenger  carrier  takes  on  so  many  different 
phases  that  it  seems  necessary  to  divide  the  subject  into  the  sev- 
eral sections  adopted  for  its  consideration:  (1)  General  princi- 
ples governing  the  liability.  (2)  Liability  growing  out  of  duty 
to  passengers  while  in  transit.  (3)  Ejection  of  passengers  and 
intruders  from  the  vehicle  of  the  carrier.  (4)  When  the  car- 
rier is  excused. 


General  Principles  Governing  the  Liability. 

§  620.  The  basis  of  the  liability.— The  basis  of  the  liability 
of  the  passenger  carrier  is  his  failure  in  the  particular  case  to 
perform  his  legal  duty  which  results  in  the  injury  or  damage. 
But  in  certain  cases  the  liability  resulting  from  such  failure  is 
modified,  and  may  be  said  to  often  depend  upon  the  failure  of 
the  passenger  to  do  his  duty  by  exercising  that  ordinary  care  in 
avoiding  the  injury  which  the  law  requires  of  him.  Contribu- 
tory negligence  on  the  part  of  the  passenger  is  a  defense  which 
the  carrier  may  successfully  make  in  some  cases,  as  we  shall  see, 
but  there  are  other  duties  resting  upon  the  carrier  to  which  this 
defense  cannot  be  made.  ^ 


1  Union  Pac.  Ry.  v.  Cappier,  66 
Kan.  649.  69  L.  R.  A.  513,  where 
the  court  discussed  this  question, 
in  a  case  where  a  trespasser  on  a 
railroad    track    was    struck   by    a 


moving  car  and  injured  without 
fault  of  the  carrier  or  his  serv- 
ants. Held  that  the  failure  of  the 
carrier's  servants  to  take  care  of 
the  wounded  man  was  not  a  vio- 


670  CARRIERS  OF  PASSENGERS.  [§    621. 

§  621.  Diligence  in  the  employment  of  servants. — The  du- 
ties of  the  passenger  carrier  are  very  generally  performed  by 
servants  whom  he  employs.  The  traveling  public  are  in  the 
hands  of  these  servants,  and  constantly,  and  almost  entirely,  de- 
pend upon  their  skill,  foresight  and  diligence  for  safe  transpor- 
tation. As,  for  example,  the  train  dispatcher,  with  his  crew  of 
assistants  at  the  telegraph  key,  directs  the  movements  of  trains; 
the  engineer,  though  ever  so  watchful,  depends  almost  entirely 
upon  the  orders  furnished  him  directing  the  running  of  his 
train ;  by  them  he  drives  his  engine  through  the  day  or  the  night, 
drawing  its  trainload  of  passengers;  the  conductor,  the  brake- 
man,  the  trackmen,  station  agents  and  switchmen  all  are  serv- 
ants of  the  carrier  company  employed  for  this  very  dangerous 
and  hazardous  business.  The  drivers  of  stage-coaches  over 
mountain  passes  or  through  dark  ravines  by  day  and  by  night, 
where  a  turn  to  the  right  or  the  left  would  dash  the  coach  and 
passengers  down  the  precipice  or  result  in  great  danger;  serv- 
ants who  stand  watch  upon  the  steamboat  or  at  the  wheel,  and 
who  direct  its  course  through  storm  and  boisterous  seas, — all 
these  are  servants  of  the  great  carrier  companies  selected  and 
put  into  these  responsible  positions  by  them.  Public  policy  de- 
mands, the  interests  of  humanity  demand,  that  the  carrier 
should  be  held  to  a  high  degree  of  diligence  in  the  selecting  of 
these  servants.  He  must  know,  at  least  have  a  reasonable  as- 
surance, that  they  are  competent  to  perform  the  duties  that  are 
laid  upon  them,  for  disasters  resulting  in  the  loss  of  life  of  pas- 
sengers who  have  intrusted  themselves  to  the  carrier  for  trans- 
portation are  inexcusable  when  caused  by  the  incompetent  and 
reckless  management  of  the  carrier's  vehicle.  In  an  early  case  in 
the  supreme  court  of  the  United  States  it  was  said  by  Mr.  Jush 
tice  Grier:^     ""When  carriers  undertake  to  convey  persons  by 

lation  of  any  legal  duty  for  which  a  stage-coach  case  where  the 
the  company  was  liable.  In  the  question  is  reviewed — held:  "Car- 
notes  in  69  L.  R.  A.  513,  the  prin-  riers  of  passengers  by  stages  are 
ciple  is  applied  in  several  cases  liable  for  injuries  resulting  from 
cited,  as  to  care  due  to  sick,  in-  the  slightest  negligence  on  the 
firm,  disabled  and  otherwise  help-  part  of  the  driver  or  proprietor  of 
less  persons,  with  whom  no  con-  the  stage,  and  they  are  bound  to 
tract  relation  is  sustained.  use  the  utmost  care  and  diligence 
2  Philadelphia,  etc.  Co.  v.  Derby,  of  cautious  persons  to  prevent  in- 
14  How.  (U.  S.)  483.  Farish  &  jury  to  the  passengers.  Where  a 
Co.  V.  Reigle,  11  Grat  (Va.)  697—  passenger  is   injured  by  the  un- 


§  621.] 


PASSENGER   CARRIER'S  LIABILITY. 


671 


the  powerful  but  dangerous  agency  of  steam,  public  policy  and 
safety  requires  that  they  be  held  to  the  greatest  possible  care 
and  diligence;  and  whether  the  consideration  for  such  transpor- 
tation be  pecuniary  or  otherwise,  the  personal  safety  of  the  pas- 
senger should  not  be  left  to  the  support,  chance  or  negligence 
of  careless  agents.  Any  negligence  in  such  cases  may  well  de- 
serve the  epithet  of  'gross.'  " 

The  same  rule  applies  to  proprietors  of  stage-coaches,  and  in 
Shafer  v.  Gilmer  ^  the  court  say :  ' '  The  law  compels  stage  pro- 
prietors to  furnish  prudent  and  skilful  drivers,  and  holds  them 
liable  for  any  injury  that  a  passenger  may  receive  on  account 
of  any  negligence  in  this  particular."  And  in  Tidier  v.  Talbot  * 
it  was  held  that  the  proprietors  of  a  stage-coach  should  furnish 
competent  and  careful  drivers,  and  if  a  stranger  shall  be  sub- 
stituted by  them,  or  their  agents,  in  lieu  of  a  regular  driver,  the 
proprietors  are  accountable  for  his  neglect  or  incompetency,  and 
that  the  carrier  of  passengers  is  required  to  do  all  that  human 


setting  of  tlie  coach,  the  presump- 
tion is  that  it  occurred  by  the  neg- 
ligence of  the  driver,  and  the  bur- 
den of  proof  is  on  the  proprietor 
of  the  coach  to  show  that  there 
wasi    no    negligence    whatsoever." 

3  13  Nev.  330,  338;  Sales  v.  West- 
ern Storage  Co.,  4  Iowa,  547;  Red- 
field  on  Carriers,  sec.  340;  Angell 
-on  Carriers,  sec.  569;  McKinney 
V.  Neil,  1  McL.  540. 

4  23  111.  357.  Frink  &  Co.  v.  Coe, 
4  G.  Greene  (Iowa),  555,  held  that 
"stage-coach  proprietors  who  carry 
passengers  for  compensation  are 
responsible  for  all  accidents  and 
injuries  happening  to  passengers 
which  might  have  been  prevented 
by  human  care  and  foresight,  and 
they  are  consequently  bound  to 
furnish  good  and  strong  coaches 
and  harness,  gentle  and  well-broke 
horses,  skillful  and  prudent  driv- 
ers, and  the  smallest  degree  of 
negligence  in  these  particulars 
will  render  such  proprietors  lia- 
Tjle  for  any  injury  to  passengers. 
Where  a  passenger  has   been   in- 


jured in  consequence  of  the  gross 
negligence  of  a  stage-coach  pro- 
prietor, by  the  employment  of  a 
known  drunken  driver,  the  injured 
party  may  be  entitled  to  exem- 
plary damages."  In  G.  R.  &  I.  Ry. 
Co.  V.  Ellison,  117  Ind.  234:  "In 
an  action  by  a  passenger  to  re- 
cover for  injuries  received  in  an 
accident  caused  by  negligence  of 
a  watchman  in  the  employment 
of  the  defendant,  it  was  held  that 
it  was  no  defense  that  the  defend- 
ant had  no  knowledge  of  the 
watchman's  incompetency  until 
after  the  accident;  and  further,  a 
passenger  is  entitled  to  a  safe 
transit,  and  the  carrier  is  bound 
to  the  highest  degree  of  reason- 
able care."  A  railroad  company 
is  not  relieved  of  liability  because 
its  employees  acted  with  reason- 
able prudence  after  discovering  a 
danger  which  their  negligence 
contributed  in  bringing  about. 
Kellow  v.  Cent.  Iowa  Ry.  Co.,  68 
Iowa,  478;  Pershing  v.  Railroad 
Co.,  71  Iowa,  567. 


672  CARRIERS  OF  PASSENGERS.  [§  G22. 

care,  vigilance  and  foresight  reasonably  can,  under  the  circum- 
stances, in  view  of  the  character  and  mode  of  conveyance 
adopted,  to  prevent  accident  to  passengers. 

§  622.  Safe  and  sufficient  means  of  transportation. — As  we 
have  seen,  it  is  incumbent  upon  the  carrier  of  passengers  to  use 
safe  and  suitable  vehicles,  roadways,  motive  power  and  ap- 
pliances. 

The  carrier  and  the  passenger  do  not  occupy  the  same  vantage 
ground  in  this  matter.  The  carrier  undertakes  to  safely  trans- 
port the  passenger,  and  impliedly  says  to  him:  take  passage  in 
this  vehicle;  it  is  perfectly  safe  and  suitable  for  the  purpose. 
The  vehicle  isi  known,  or  ought  to  be,  by  the  carrier.  He  is  sup- 
posed to  be  skilled  not  only  in  the  matter  of  operating  but  in  se- 
lecting the  means  of  conveyance.  The  passenger  cannot  inspect 
it  and  determine  its  sufficiency;  he  is  entirely  dependent  upon 
the  carrier,  and  so  the  law  requires  of  the  carrier  the  very  high- 
est degree  of  diligence  and  foresight;  and  while  the  carrier  can- 
not be  held,  as  in  the  case  of  can-iage  of  goods,  to  warrant  the 
means  of  conveyance  to  be  sufficient  and  adequate,  if  the  defect 
to  which  the  injury  is  attributable  was  such  that  it  could  have 
been  discovered  by  the  most  careful  and  competent  inspection, 
by  that  "utmost  care  and  diligence  which  human  prudence  and 
foresight  will  suggest,"  the  carrier  will  be  liable.^ 

6  In  Pennsylvania  Ry.  Co.  v.  enforces  with  great  strictness. 
Roy,  102  U.  S.  451,  457,  it  was  held  For  the  slightest  negligence  or 
that  the  carrier  "is  responsible  for  fault  in  this  regard,  from  which 
injuries  received  by  passengers  in  injury  results  to  the  passenger, 
the  course  of  their  transportation  the  carrier  is  liable  in  damages, 
which  might  have  been  avoided  .  .  .  The  duty  of  the  railroad 
or  guarded  against  by  the  exer-  company  was  to  convey  the  pas- 
cise,  upon  his  part,  of  extraordi-  senger  over  its  line,  and  in  per- 
nary  vigilance  aided  by  the  high-  forming  that  duty  it  could  not, 
est  skill.  And  this  caution  and  consistently  with  the  law  and  the 
vigilance  must  necessarily  be  ex-  obligations  arising  out  of  the  na- 
tended  to  all  the  agencies  or  ture  of  its  business,  use  cars  or 
i^eans  employed  by  the  carrier  in  vehicles  whose  inadequacy  or  in- 
the  transportation  of  the  passen-  sufficiency  for  safe  conveyance 
ger.  Among  the  duties  resting  was  discoverable  upon  the  most 
upon  him  is  the  important  one  of  careful  and  thorough  examina- 
providing  cars  or  vehicles  ade-  tion."  Steamboat  New  World  v. 
quate,  that  is,  sufficiently  secure  King,  16  How.  (U.  S.)  469;  Rail- 
as  to  strength  and  other  requi-  road  Co.  v.  Pollard,  22  Wall.  (U. 
sites  for  the  safe  conveyance  of  S.)  341. 
passengers.      That    duty    the    law 


§    623.]  PASSENGER   CARRIER'S  LIABILITY.  673 

Judge  Cooley  states  the  rule  as  to  carriers  of  passengers  to 
be :  Such  carrier  ' '  only  undertakes  that  he  will  carry  them  with- 
out negligence  or  fault.  But  as  there  are  committed  to  his 
charge  for  the  time  the  lives  and  safety  of  persons  of  all  ages 
and  of  all  degrees  of  ability  for  self-protection,  and  as  the  slight- 
est failure  in  watchfulness  may  be  destructive  of  life  or  limb, 
it  is  reasonable  to  require  of  him  the  most  perfect  care  of  pru- 
dent and  cautious  men,  and  his  undertaking  and  liability  as  to 
his  passengers  goes  to  this  extent:  that,  as  far  as  human  fore- 
sight and  care  can  reasonably  go,  he  will  transport  them 
safely. ' '  ^ 

§  623.  Carrier's  liability  for  injuries  of  servants  resulting 
from  negligence  of  fellow  servants. — Generally  the  carrier  is 
not  liable  for  an  injury  suffered  by  his  servant,  the  result  of  the 
negligent  act  of  a  fellow  servant,  engaged  in  carrying  on  the 
same  common  enterprise.  When  this  rule  of  the  law  of  liability 
applies,  and  what  are  the  modifying  circumstances  to  be  consid- 
ered in  determining  its  application,  is  the  question  we  have  to 
consider.  It  is  a  rule  of  the  common  law  generally  accepted  by 
all  courts  and  important  in  this  connection,  that  every  person  is 
responsible  for  the  consequences  of  his  own  wrongful  acts,  and 
in  whatever  business  he  is  engaged  must  so  regulate  his  actions 
as  not  to  cause  injury  to  another.  While  this  is  the  accepted 
rule,  it  is  as  well  settled  that  a  person  is  not  generally  answer- 
able for  the  wrongful  acts  of  another.  The  relation  of  the  par- 
ties and  the  manner  of  performing  the  act  which  results  in  the 
injury  is  however  very  material  in  fixing  the  liability;  for 
coupled  with  the  rules  above  stated  is  that  principle  equally  as 
well  settled  that  when  one  does  an  act  by  another  who  is  his  serv- 
ant acting  within  the  scope  of  his  employment  and  from  it  an  in- 
jury results,  the  master  or  employer  is  liable,  for  in  such  case  the 
act  of  the  servant  is  the  act  of  the  master.  How  these  generally  ac- 
cepted and  well  settled  rules  of  law  are  to  obtain  without  restric- 

6  Cooley  on  Torts   (2d  ed.),  768,  and    safety   of   large   numbers   of 

7G9.     See  cases  cited  on  page  769.  human  beings;"  and  when  passen- 

In  Taylor  v.  Grand  Trunk  Ry.  Co.,  gers  are  carried  by  steam,  the  de- 

48  N.  H.  304,  it  was  said:   "Upon  mand  for  the  utmost  skill  and  dil- 

grounds  of  public  policy  also,  the  igence  is  especially  required,  for 

carrier  of  passengers  is  bound  to  then,  in  consequence  of  the  great 

exercise  the  highest  degree  of  care  speed,  the  hazard  to  life  and  limb 

and    diligence.     To   his    diligence  is  largely  increased, 
and  fidelity  are  intrusted  the  lives 

43 


674  CARRIERS  OF  PASSENGERS.  [§'  624. 

tions,  in  cases  where  a  servant  of  the  master  or  employer  sustahis 
injury  resulting  from  the  wrongful  act  of  a  fellow  servant  em- 
ployed in  carrying  on  the  same  common  enterprise  or  undertak- 
ing and  for  the  same  common  employer,  is  the  question  for  dis- 
cussion; or  as  generally  stated  what  is  the  liability  of  the  em- 
ployer for  injuries  suffered  by  his  servant  the  result  of  the 
wrongful  acts  of  a  fellow  servant.  Let  it  be  understood  at  the 
outset  that  in  the  settlement  of  this  question  no  restrictions  or 
exceptions  have  been  made  in  the  application  of  the  rules  of  the 
common  law  above  stated.''  Important  to  the  better  under- 
standing of  this  subject  are  those  legal  principles,  before  men- 
tioned, which  govern  to  some  extent  the  liability  of  the  employer 
in  this  class  of  cases,  making  it  incumbent  upon  him  to  provide 
suitable  and  appropriate  means  for  carrying  out  the  object  of 
the  employment,  to  furnish  a  suitable  place,  proper  material, 
appropriate  machinery,  competent  servants  and  in  every  needful 
particular  to  exercise  such  a  degree  of  care  and  diligence  in  this 
respect  as  the  particular  employment  demands;  and  on  the  part 
of  the  servant,  that  in  entering  upon  the  service,  he  assumes  the 
obvious  or  ascertainable  dangers,  discoverable  by  ordinary  care, 
incident  to  the  employment,  and  will  pursue  it  with  such  a  de- 
gree of  care  and  diligence  as  the  particular  business  demands. 

§  624.  The  rule  stated — Its  origin. — The  rule  which  excuses 
the  master  from  liability  for  injuries  to  a  servant  resulting 
from  the  negligent  acts  of  his  fellow  servant,  may  be  said  to  ob- 
tain where  the  master  is  not  guilty  of  neglect  of  duty  upon  his 
part  and  the  injury  suffered  is  by  reason  of  the  negligence  of  a 
fellow  servant  while  employed  in  the  conduct  of  the  same  com- 
mon enterprise  or  undertaking.^ 

7  Flike  V.  Boston,  etc.  R.  Co.,  53  that  they  may  exercise  a  material 

N.  Y.  549,  13  Am.  Rep.  545.  influence  upon  each  other,  promo- 

s  In  Chicago,  etc.  R.  Co.  v.  tive  of  proper  caution,  the  master 
Kneirim,  152  111.  458,  43  Am.  St.  is  guilty  of  no  negligence  in  em- 
Rep.  259,  the  court  say:  "The  rule  ploying  the  servant  causing  the 
in  this  state  is  that  where  one  injury,  the  master  is  not  liable." 
servant  is  injured  by  the  negli-  In  Farwell  v.  Boston  R.  Co.,  4 
gence  of  another  servant  where  Mete.  (Mass.)  49-58,  38  Am.  Dec. 
they  are  directly  co-operating  with  339,  the  court  say:  "Where  sev- 
each  other  in  a  particular  business  eral  persons  are  employed  in  the 
In  the  same  line  of  employment,  or  conduct  of  one  common  enterprise, 
their  duties  being  such  as  to  bring  or  undertaking,  and  the  safety  of 
them  into  habitual  association,  so  each   depends  much   on   the   care 


^  621 


PASSENGER   CARRIER'S  LIABILITY. 


675 


The  origin  of  the  doctrine  is  of  course,  from  the  relation  of  the 
parties  and  the  carrying  on  of  their  common  enterprises,  and  co- 
extensive with  the  relation  of  master  and  servant;  and  it  is  said 
that  its  first  application  or  statement  by  the  courts  of  England 
was  in  the  case  of  Preistly  v.  Fowler,^  decided  in  1837,  and  in 
America  in  the  case  of  Murray  v.  South  Carolina  Railroad  Co.,^'^ 
decided  in  1841.  This  case  was  followed  by  the  case  of  Farwell 
V.  Boston  R.  Co.,^^  which  is  no  doubt  the  leading  case  on  this 
subject  ^^ 

§  625.  When  the  master's  negligence  contributes  to  the  in- 
jury.— The  master's  nonliability  rests  upon  his  diligence  in 
performing  the  duties  incumbent  upon  him,  and  if  he  has  failed 
in  this  and  the  injury  is  wholly  or  in  part  the  result  of  his  neg- 
ligence, he  is  liable.  As  where  the  master  furnished  defective 
machinery  for  use  in  carrying  on  his  business  and  a  co-servant 
was  injured,  by  reason  of  its  employment,  by  a  fellow  servant, 
the  master  would  be  liable  notwithstanding  the  negligence  of 
the  servant  in  using  the  defective  machinery.^*     Some  of  the 


and  skill  with  whicli  each  other 
shall  perform  his  appropriate 
duty,  each  is  an  observer  of  the 
conduct  of  the  others,  can  give  no- 
tice of  any  misconduct,  Incapacity 
or  neglect  of  duty,  and  leave  the 
service  if  the  common  employer 
will  not  take  such  precautions  and 
employ  such  agents  as  the  safety 
of  the  whole  party  may  require. 
By  these  means  the  safety  of  each 
will  be  much  more  effectually  se- 
cured than  could  be  done  by  a 
resort  to  the  common  employer 
for  indemnity  in  case  of  loss  by 
the  negligence  of  each  other.  Re- 
garding it  in  this  light  it  is  the 
ordinary  case  of  one  sustaining 
an  injury  in  the  course  of  his  own 
employment  In  which  he  must 
bear  the  loss  himself  or  seek  his 
remedy,  if  he  have  any,  against 
the  actual   wrong-doer." 

9  3  M.  &  W.  1. 

10  1  McMull.  L.    (S.  C.)    385,  36 
Am.  Dec.  268. 


11 4  Mete.  (Mass.)  49,  38  Am. 
Dec.  339. 

12  In  Anderson  v.  Bennett,  16 
Ore.  515,  8  Am.  St.  Rep.  311,  Lord 
J.,  in  delivering  the  opinion  of  the 
court,  said:  "Although  Murray  v. 
South  Carolina  R.  Co.  .  .  . 
was  decided  prior  to  Farwell  v. 
Boston  R.  Corp.  .  .  .  yet  the 
latter  has  been  usually  regarded 
as  the  leading  case  in  which  the 
doctrine  of  fellow  servant  was  first 
clearly  enunciated  and  its  princi- 
ples engrafted  into  our  law."  Nu- 
merous cases  where  the  law  has 
been  applied  by  the  several  su- 
preme courts  of  the  states  may  be 
found  cited  in  12  Am.  &  Bng.  Ency. 
of  L.   (2d  ed.)  page  398,  note  4. 

13  Ocean  S.  S.  Co.  v,  Matthews, 
86  Ga.  418;  Sherman  v.  Menomi- 
nee, etc.  Co.,  72  Wis.  122;  Cone  v. 
Delaware,  etc.  R.  Co.,  81  N.  Y.  206, 
37  Am.  Rep.  401. 


G76  CARRIERS  OF  PASSENGERS.  [§  625. 

courts  have  held  that  the  negligence  of  the  master  must  be  the 
proximate  cause  of  the  injury  but  the  authorities  are  not  en- 
tirely harmonious  upon  this  question ;  and  where  the  coupling  of 
a  car  was  defective  and  a  brakeman  was  obliged  to  get  under  the 
platform  to  couple  the  cars  and  while  there  the  conductor,  not 
knowing  he  was  so  engaged,  signaled  the  engineer  to  move  the 
train  and  the  brakeman  was  killed,  it  was  held  that  the  railroad 
company  was  not  liable,  that  the  proximate  cause  of  the  injury 
to  the  brakeman  was  the  negligence  of  a  fellow  servant  and  not 
a  defective  coupling.^*  But  it  cannot  be  said  that  this  is  the 
holding  of  the  majority  of  the  courts.  The  weight  of  authority 
seems  to  be  as  stated  in  Boyce  v.  Fitzpatrick '^^  that  "Where  a 
servant  assumes  the  risk,  more  or  less  hazardous,  of  the  service 
in  which  he  engages  he  has  a  right  to  assume  that  all  reasonable 
attention  will  be  given  by  his  employer  to  his  safety  and  that  he 
shall  not  be  carelessly  or  needlessly  exposed  to  risk  which  might 
be  avoided  by  ordinary  care  and  precaution  on  the  part  of  his 
employer.  And  where  the  injury  was  caused  by  reason  of  a  de- 
fective trestle  work  and  partly  by  the  negligence  of  fellow  serv- 
ants, plaintiff  was  allowed  to  recover.^®  As  was  said  by  the 
court  in  Paulmier  v.  Railroad  Company:'^''  "The  servant  does 

1*  Pease  v.  Chicago,  etc.  R.  Co.,  may  be  fellow-servants  of  others 

61   Wis.    163,   17   Am.    &   ETng.    R.  engaged    in    making    the    repairs. 

Cases,  527;   Philadelphia  Iron,  etc.  but   not  of  those   for  whose   use 

Co.  V.  Davis,  111  Pa.   St.   597,  56  and  benefit  they  are  made.     Nor 

Am.  Rep.  305.  does    the    fact    that    the    persons 

15  80  Ind.  526.  making  repairs  may  be  employed 

16  Elmer  v.  Lock,  135  Mass.  575.  in  fellow  service  with  the  injured 

17  34  N.  J.  L(.  155.  In  Balhoff  v.  person,  in  other  work,  relieve  the 
Michigan  Central  R.  Co.,  106  Mich.  master.  The  duty  is  one  that  the 
606,  612,  Mr.  Justice  Hooker  has  master  cannot  escape  by  delegat- 
stated  the  rule  as  to  the  duty  of  ing  it."  For  authorities  upon  this 
the  master  to  furnish  a  safe  place  branch  of  the  case,  see  cases  cited 
and  appliances  for  performing  the  in  McKinney,  Fel.  Serv.  sec.  29, 
service.  This  was  a  railroad  case.  and  note;  Benzing  v.  Steinway, 
The  court  say:  "The  master  owes  101  N.  Y.  547;  Herbert  v.  Railroad 
the  duty  of  furnishing  a  reasona-  Co.,  3  Dak.  38;  Sanborn  v.  Trad- 
Lly  safe  track,  and  this  is  a  re-  ing  Co.,  70  Cal.  261;  Capper  v. 
sponsibility  from  which  the  com-  Railway  Co.,  103  Ind.  305;  Fort 
pany  is  not  relieved  by  confiding  v.  Railroad  Co.,  2  Dill,  259;  Krue- 
the  duty  of  construction  or  repairs  ger  v.  Railroad  Co.,  Ill  Ind.  51. 
to  competent  servants.  Such  are  The  duty  to  furnish  a  safe  place 
the  master's  agents,  and  their  neg-  to  work  is  asserted  in  the  cases  of 
ligence    is   his    negligence.      They  Swoboda   v.   Ward,   40   Mich.    423, 


§  626.J 


PASSENGER   CARRIER  S  LIABILITY. 


677 


not  ag-ree  to  take  the  chances  of  any  negligence  on  the  part  of 
his  employer,  and  no  case  has  gone  so  far  as  to  hold  that  when 
such  negligence  contributes  to  the  injury,  the  servant  may  not 
recover.  It  would  be  both  unjust  and  impossible  to  suffer  the 
master  to  evade  the  penalty  for  his  misconduct  in  neglecting  to 
provide  properly  for  the  security  of  his  servant.  Contributory 
negligence  to  defeat  a  right  of  action  must  be  that  of  the  party 
injured. ' ' 

§  626.  When  the  injury  is  the  result  of  the  negligence  of  an 
incompetent  fellow  servant. — As  we  have  seen  it  is  the  duty 


and  Smith  v.  Car  Works,  60  Mich. 
504.  In  Van  Dusen  v.  Letellier, 
78  Mich.  492,  Mr.  Justice  Morse 
reiterates  the  docrtine,  and  as- 
serts that  one  to  whom  the  duty 
is  delegated  represents  the  mas- 
ter, and  is  not  the  fellow-servant 
of  an  operative  using  the  place. 
This  doctrine  was  again  asserted 
In  Brown  v.  Gilchrist,  80  Mich. 
65,  and,  as  applied  to  machinery, 
is  laid  down  in  Morton  v.  Rail- 
road Co.,  81  Mich.  423,  by  Mr. 
Justice  Cahill,  who  asserts  that 
delegation  of  the  duty  will  not 
relieve  the  master  of  responsibil- 
ity. The  same  is  said  in  the  case 
of  Sadowski  v.  Car  Co.,  84  Mich. 
106.  Mr.  Justice  Champlin  rec- 
ognized the  rule  in  Fox  v.  Iron 
Co.,  89  Mich.  393.  It  was  applied 
in  Ashman  v.  Railroad  Co.,  90 
Mich.  567,  where  it  was  held  that 
the  duty  of  blocking  a  frog  could 
not  be  delegated  so  as  to  relieve 
the  company  from  responsibility. 
It  should  be  stated,  however,  that 
this  was  a  statutory  duty.  Mr. 
Justice  Long  followed  these  cases 
in  his  opinion  in  the  case  of  Roux 
V.  Lumber  Co.,  94  Mich.  615,  and 
recognized  it  in  Dewey  v.  Railway 
Co.,  97  Mich.  332.  It  has  been  re- 
affirmed in  the  case  of  Beesley  v. 
F.  W.  Wheeler  &  Co.,  103  Mich. 
196,  and  recognized  in  both  opin- 


ions  in  the  case  of  Schroeder  v. 
Railroad  Co.,  103  Mich.  213. 

"It  would  seem  that  it  should  be 
considered  as  settled  in  this  state 
that  the  master  must  furnish  a 
reasonably  safe  place,  and  cannot 
avoid  responsibility  by  delegating 
the  duty.  If  this  is  so,  what  rea- 
son can  there  be  for  saying  that 
the  trackmen,  to  whom  belongs 
the  labor  of  keeping  the  track  in 
repair  and  safe  condition,  are  fel- 
low servants  of  the  trainmen,  who 
use  it?  The  reason  given  is  that 
our  decisions  hold  that  section 
men  and  trainmen  are  fellow 
servants.  An  examination  of  the 
cases  will  show  that  in  some,  if 
not  all,  of  them  the  section  men 
and  trainmen  were,  as  a  matter  of 
fact,  engaged  in  a  common  serv- 
ice, and  therefore  were  fellow 
servants.  Where  the  section  men 
assist  the  trainmen  in  operating 
the  road,  as  by  throwing  switches, 
coupling  cars,  etc.,  or  the  train- 
men assist  in  repairing  the  road, 
by  taking  laborers  upon  a  con- 
struction train,  and  all,  in  their 
respective  capacities,  engage  in 
removing  debris,  or  restoring  de- 
railed rolling  stock  to  its  place 
upon  the  rails,  they  are  engaged 
in  a  common  service,  whatever 
their  other  general  duties  may 
bo." 


678  CARRIERS  OF  PASSENGERS.  [§    626. 

of  the  master  to  furnish  competent  fellow  servants.  The  co- 
servant  in  assuming  the  ordinary  risk  of  the  employment  does 
not  assume  the  risk  of  the  negligence  of  incompetent  fellow 
servants  unless  he  has  had  notice  of  such  incompetency  before 
entering  upon  the  service.  And  so  when  the  injury  is  the  result 
of  the  negligence  of  an  incompetent  fellow  servant,  the  master 
is  liable.  Not  that  the  master  warrants  to  his  servants  the  com- 
petency of  every  fellow  servant  in  his  employ;  the  obligation  of 
the  master  does  not  go  to  that  extent,  but  he  is  required  to  ex- 
ercise ordinary  diligence  in  the  employment  and  retention  of 
such  servants,  an  ordinary  diligence  measured  and  defined  by 
the  particular  business  in  which  he  is  engaged  and  the  danger  of 
the  situation  the  servant  is  required  to  assume.  In  the  business 
of  the  common  carrier  that  situation  is  often  a  hazardous  and 
dangerous  one  and  the  diligence  of  the  master  must  be  commen- 
surate with  the  service  required.  The  definition  of  ordinary 
diligence  in  this  particular  is  as  has  been  generally  stated.^* 
Examples  that  might  be  cited,  illustrating  negligence  of  common 
carriers  in  this  respect,  are  numerous ;  as  the  employment  of  in- 
competent engineers  to  run  their  locomotives,  of  incompetent 
conductors  to  manage  their  trains,  inefficient  train  dispatchers 
or  bridge  builders  or  roadmasters.^^  If  the  carrier  or  master 
knows  of  the  inability  of  the  servant  and  continues  him  in  his 
employ  he  is  liable  for  the  servant's  negligent  acts,  the  result  of 
his  incompetency,  or  if  because  of  his  general  reputation  for  in- 
competency, or  numerous  incompetent  acts,  the  master,  exercis- 
ing ordinary  diligence,  ought  to  have  knowledge  of  his  inability, 
or  if  there  is  enough  to  put  the  master  on  inquiry,  which  if  fol- 
lowed up  would  lead  to  such  knowledge,  then  the  master  would 
be  held  to  have  knowledge  of  whatever  his  investigation  would 
lead  to,  and  his  liability  would  be  increased  accordingly. 2° 

18  Wabash  R.  Co.  v.  McDaniels,  have  been  addicted  to  drinking 
107  U.  S.  454;  Western  Stone  Co.  habit  have  been  classed  with 
V.  Whalan,  151  111.  472;  Michigan  these  examples;  Baltimore,  etc.  R. 
Central  R.  Co.  v.  Gilbert,  46  Mich.  Co.  v.  Henthorn,  73  Fed.  734;  Chi- 
176;  Howorth  v.  Seevers  Mfg.  Co.,  cago,  etc.  R.  Co.  v.  Sullivan,  63 
87  Iowa,  765.  111.  293. 

19  Illinois  Central  R.  Co.  v.  Jew-  20  Hilts  v.  Chicago,  etc.  R.  Co., 
ell,    46    111.    99;    Haskins   v.   New  55    Mich.    437;    Michigan    Central 
York  Central  R.  Co.,  65  Barb.   (N.  R.    Co.    v.    Gilbert,    46    Mich.    176, 
Y.)   129;   Timm  v.  M.  C.  R.  R.  98  and  see  cases  above  cited. 
Mich.    226,    cases    where    servants 


§    627.]  PASSENGER  CARRIER'S  LIABILITY.  679 

§  627.  Superior  servant  rule  as  contradistinguished  from 
the  alter  ego  or  vice  principal  doctrine. — In  some  of  the  states, 
the  courts  have  held  that  the  rule  laid  down  as  fundamental  in 
the  beginning  of  this  discussion,  namely,  that  every  person  is 
responsible  for  his  own  wrongful  acts,  but  not  for  the  acts  of 
another,^^  is  subject  to  some  restrictions  or  modifications  when 
applied  to  determining  the  liability  of  the  master  or  principal 
for  an  injury  to  a  co-servant  the  result  of  the  negligent  acts  of  a 
fellow  servant,  in  this,  that  a  servant  not  a  vice  principal  or 
alter  ego  of  the  master  but  one  who  in  the  course  of  carrying  on 
the  business  or  common  pursuit  occupies  a  position  among  his  co- 
servants  superior  to  them  in  authority  (as  a  superintendent, 
foreman,  conductor  or  engineer),  represents  the  master  to  such 
an  extent  that  he  may  render  him  liable  to  a  co-servant  for  an 
injury  received,  the  result  of  obedience  of  the  orders  of  such 
superior  servant. 

This  is  called  the  superior  servant  rule  and  has  frequently 
been  applied  in  cases  where  an  engineer  or  brakeman  has  been 
injured  as  a  result  of  obeying  the  orders  of  a  conductor,  or  be- 
cause of  his  negligence  in  running  his  train,  or  where  the  fore- 
man of  a  gang  of  men  engaged  in  graveling  or  repairing  the  road- 
bed under  the  general  directions  of  the  roadmaster  has  given 
orders  by  way  of  directing  the  work  which  has  resulted  in  an  in- 
jury to  a  co-servant. 

In  the  case  of  Chicago,  etc.,  B.  Co.  v.  Boss,-^  decided  by  the 
Supreme  Court  of  the  United  States  December  8,  1884,  the  act- 
ion was  by  an  engineer  of  a  freight  train  for  an  injury  sustained 
in  a  collision  with  a  gravel  train,  the  result  of  the  negligence  of 
the  conductor  in  charge  of  the  train  on  which  the  injured  en- 
gineer was  employed.  Mr.  Justice  Field  in  the  course  of  the 
opinion  said  "When  the  service  to  be  rendered  requires  for  its 
performance  the  employment  of  several  persons  as  in  the  move- 
ment of  railway  trains,  there  is  necessarily  incident  to  the  service 
of  each  the  risk  that  the  others  may  fail  in  the  vigilance  and  cau- 
tion essential  to  his  safety.  And  it  has  been  held  in  numerous 
cases,  both  in  this  country  and  in  England,  that  there  is  implied 
in  his  contract  of  service  in  such  cases,  that  he  takes  upon  him- 
self the  risks  arising  from  the  negligence  of  his  fellow-servants, 
while  in  the  same  employment,  provided  always  the  master  is 
not  negligent  in  their  selection  or  retention  or  in  furnishing  ade- 

21  Ante.  §  623.  22  112  U.  S.  337,  28  L.  Ed.  787. 


680  CARRIERS  OP  PASSENGERS.  [§    627. 

qiiate  materials  and  means  for  the  work;  and  that  if  injuries 
then  befall  him  from  such  negligence,  the  master  is  not  liable.'" 
"There  is,  in  our  judgment,  a  clear  distinction  to  be  made  in 
their  relation  to  their  common  principal,  between  servants  of  a 
corporation,  exercising  no  supervision  over  others  engaged  with 
them  in  the  same  employment,  and  agents  of  the  corporation, 
clothed  with  the  control  and  management  of  a  distinct  depart- 
ment, in  which  their  duty  is  entirely  that  of  direction  and  super- 
intendence. A  conductor,  having  the  entire  control  and  man- 
agement of  a  railway  train,  occupies  a  very  different  position 
from  the  brakemen,  the  porters  and  other  subordinates  em- 
ployed. He  is,  in  fact  ana  should  be  treated,  as  the  personal 
representative  of  the  corporation,  for  w^hose  negligence  it  is  re- 
sponsible to  sulwrdinate  servants.  This  view  of  his  relation  to 
the  corporation  seems  to  us  a  reasonable  and  just  one,  and  it  will 
insure  more  care  in  the  selection  of  such  agents,  and  thus  give 
greater  security  to  the  servants  engaged  under  him,  in  an  em- 
ployment requiring  the  utmosit  vigilance  on  their  part,  and 
prompt  and  unhesitating  obedience  to  his  orders.  The  rule  which 
applies  to  such  agents  of  one  railway  corporation  must  apply  to 
all.  and  many  corporations  operate  every  day,  several  trains  over 
hundreds  of  miles  at  great  distances  apart,  each  being  under  the 
control  and  direction  of  a  conductor  specia»ly  appointed  for  its 
management.  We  know  from  the  manner  in  which  railways  are 
operated  that  subject  to  the  general  rules  and  orders  of  the  di- 
rectors of  the  companies,  the  conductor  has  entire  control  and 
management  of  the  train  to  which  he  is  assigned.  He  directs 
when  it  shall  start,  at  what  speed  it  shall  run,  at  what  stations 
it  shall  stop  and  for  what  length  of  time,  and  everything  essen- 
tial to  its  successful  movements,  and  all  persons  employed  on  it 
are  subject  to  his  orders.  In  no  proper  sense  of  the  terms  is  he 
a  fellow-servant  with  the  fireman,  the  brakeman,  the  porters  and 
the  engineer.  The  latter  are  fellow-servants  in  the  running  of 
the  train  under  his  direction,  who,  as  to  them  and  the  train, 
stands  in  the  place  of  and  represents  the  corporation.  As  ob- 
served by  Mr.  Wharton  in  his  valuable  treatise  on  the  Law  of 
Negligence:  'It  has  sometimes  been  said  that  a  corporation  is 
obliged  to  act  always  by  servants,  and  that  it  is  unjust  to  impute 
to  it  personal  negligence  in  cases  where  it  is  impossible  for  it  to 
be  negligent  personally.  But  if  this  be  true,  it  would  relieve 
corporations  from  all  liability  to  servants.     The  true  view  is, 


§    627.]  PASSENGER   CARRIER'S   LIABILITY.  681 

that  as  corporations  can  act  only  through  superintending  officers, 
the  negligences  of  those  officers,  with  respect  to  other  servants, 
are  the  negligences  of  the  corporation." 

This  case  was  followed  by  several  cases  in  the  federal  courts 
and  in  a  number  of  the  states,  notably  Illinois,  Tennessee,  Vir- 
ginia, Kentucky,  Georgia,  and  similar  holdings  may  be  found  in 
Ohio,  North  Carolina,  Kansas,  Nebraska  and  Missouri,  but  this 
is  not  the  generally  adopted  doctrine.  The  weight  of  authority 
holds  that  to  hold  the  principal  liable  for  such  injuries  the  co- 
servant  who  committed  the  negligent  act  or  by  reason  of  whose 
orders  it  resulted,  must  occupy  the  relation  of  vice  principal  or 
alter  ego  of  the  master;  that  when  this  relation  exists  the  alter 
ego  or  vice-principal,  is  the  master  and  the  negligent  act  or  or- 
der, is  the  act  or  order  of  the  principal  and  the  liability  nec- 
cessarily  is  the  master's. 

The  rule  is  thus  clearly  stated  by  ]\Ir.  Justice  Champlin  in 
Hunn  V.  Railroad  Co.:^^  "Whenever  the  business  conducted  by 
the  person  selected  by  the  master  is  such  that  the  person  se- 
lected is  invested  with  full  control  (subject  to  no  one's  supervi- 
sion except  the  master's)  over  the  actions  of  the  employees  en- 
gaged in  carrying  on  the  particular  branch  of  the  master's  busi- 
ness, and  acting  upon  his  own  discretion,  according  to  general  in- 
structions laid  down  for  his  guidance,  it  is  his  province  to  di- 
rect, and  the  duty  of  the  employees  to  obey,  then  he  stands  in 
the  place  of  the  master,  and  is  not  a  fellow  servant  with  those 
whom  he  controls." 

In  the  case  of  Balthnore,  etc.  R.  Co.  v.  Baugh,^*  a  case  decided 
by  the  supreme  court  of  the  United  States  in  1893,  that  court 
seems  to  have  adopted  the  vice-principal  or  alter  ego  doctrine 
instead  of  the  superior  servant  doctrine,  following,  as  we  have 
stated,  the  weight  of  authority  upon  this  subject.  The  facts  in 
the  case  may  be  briefly  stated.  An  engineer  and  fireman  were 
employed  in  running  an  engine  engaged  in  assisting  trains  up  a 
grade.  The  engine,  after  assisting  a  train,  complying  with  the 
rules  of  the  company  might  return  in  one  of  two  ways,  on  orders 
from  the  train  dispatcher  or  by  following  a  regular  train  carry- 
ing a  flag  indicating  that  it  was  following.     The  engineer  in 

23  78  Mich.  513,  519,  and  see  au-      Conn.     285;     Beesley     v.     F.     W. 
thorities     cited     in    the    opinion.      V/heeler  &  Co.,  103  Mich.  196. 
Darringer     v.     Railroad     Co.,     52  24  149  U).  S.  368,  37  L.  Ed.  772, 

78L 


t)82  CARRIERS  OP  PASSENGERS.  [§    627. 

charge  of  the  engine  adopted  neither  of  these  ways,  but  was  run- 
ning back  without  orders  or  signal  when  he  came  in  collision 
with  a  train  running  in  the  opposition  direction  and  the  plaintiff 
(the  fireman)  was  injured.  The  court  in  its  opinion  discussing 
the  liability  for  the  injury  among  other  things  say:  "Again  a 
master  employing  a  servant  impliedly  engages  with  him  that  the 
place  in  which  he  is  to  work,  and  the  tools  or  machinery  with 
which  he  is  to  work  or  by  which  he  is  to  be  surrounded,  shall  be 
reasonably  safe.  It  is  the  master  who  is  to  provide  the  place 
and  the  tools  and  the  machinery,  and  when  he  employs  one  to 
enter  into  his  service  he  impliedly  says  to  him  that  there  is  no 
other  danger  in  the  place,  the  tools  and  the  machinery,  than 
such  as  is  obvious  and  necessary.  Of  course,  some  places  of 
work  and  some  kinds  of  machinery  are  more  dangerous  than 
others,  but  that  is  something  which  inheres  in  the  thing  itself, 
which  is  a  matter  of  necessity,  and  cannot  be  obviated.  But 
within  such  limits  the  master  who  provides  the  place,  the  tools, 
and  the  machinery  owes  a  positive  duty  to  his  employee  in  re- 
spect thereto.  That  duty  does  not  go  to  the  extent  of  a  guar- 
antee of  safety,  but  it  does  require  that  reasonable  precautions 
be  taken  to  secure  safety,  and  it  matters  not  to  the  employee  by 
whom  that  safety  is  secured,  or  the  reasonable  precautions 
therefor  taken.  He  has  a  right  to  look  to  the  master  for  the 
discharge  of  that  duty,  and  if  the  master,  instead  of  discharging 
it  himself,  sees  fit  to  have  it  attended  to  by  others,  that  does  not 
change  the  measure  of  obligation  to  the  employee,  or  the  latter 's 
right  to  insist  that  reasonable  precaution  shaU  be  taken  to  secure 
safety  in  these  respects.  Therefore  it  will  be  seen  that  the  ques- 
tion turns  rather  on  the  character  of  the  act  than  on  the  relation 
of  the  employees  to  each  other.  If  the  act  is  one  done  in  the  dis- 
charge of  some  positive  duty  of  the  master  to  the  servant  then 
negligence  in  the  act  is  the  negligence  of  the  master;  but  if  it 
be  not  done  in  the  discharge  of  such  positive  duty  then  there 
should  be  some  personal  wrong  on  the  part  of  the  employer  be- 
fore he  is  held  liable  therefor. ' '  ^^ 

25  See  notes  and  cases  collected  the    case   of   Jackson   v.   Norfolk, 

and    cited    in   tlie   report   of   this  etc.  R.  Co.,  43  W.  Va.  380,  and  in 

case   in   37   L.   Ed.    (U.    S.   Rep.)  notes  collected  and  cases  cited  in 

pages   772-775.  46  L.  R,  A.  337,  with  a  report  of 

A  full   and   valuable   discussion  the  case.     In  that  case  the  court 

of  the   subject  may   be  found   in  say:  "The  difficult  question  is  who 


§  628.] 


PASSENGER   CARRIER  S  LIABILITY. 


68a 


§  628.  Act  of  congress  to  regulate  liability. — The  Congresa 
of  the  United  States  under  the  powers  delegated  to  regulate 


are  fellow  servants?  Necessity 
calls  for  some  test  or  rules  gen- 
erally applicable  in  the  multi- 
tudinous cases  everywhere;  and  a 
principle  of  justice  here  presents 
itself  furnishing  that  rule,  put- 
ting on  the  master  liability  when 
he  should  bear  it,  and  leaving 
with  the  servant  the  misfortune 
where  he  should  bear  it.  That 
principle  logically  says  that  we 
must  look  at  the  act  negligently 
done  causing  the  injury,  and  if 
the  performance  of  that  act  is  a 
duty  which  the  master  is  required 
by  law  to  do  properly,  then  he  is 
liable,  whether  he  negligently  does 
the  act  himself  or  through  an- 
other as  his  servant;  but  if  it  is 
not  an  act  of  duty  imposed  by 
law  upon  the  master,  but  one 
purely  the  duty  of  another  serv- 
ant to  do  properly,  both  for  the 
benefit  of  his  master  and  his 
servant,  the  master  is  not  liable. 
I  repeat  that  it  depends  upon  the 
character  of  the  act  negligently 
done.  Is  it  a  duty  of  the  master 
to  the  servant?  We  must  there- 
fore see  what  duty  the  master 
owes  to  the  servant.  These  du- 
ties are  well  summed  up  accord- 
ing to  the  received  law  in  Mad- 
den V.  Chesapeake  &  O.  R.  Co.,  28 
W.  Va.  617,  57  Am.  Rep.  695,  as 
follows:  'First,  to  provide  safe 
and  suitable  machinery  and  appli- 
ances for  the  business.  This  in- 
cludes the  exercise  of  reasonable 
care  in  furnishing  such  appli- 
ances, and  the  exercise  of  like 
care  in  keeping  the  same  in  re- 
pair and  making  proper  inspec- 
tions and  tests.  Second,  to  exer- 
cise like  care  in  providing  and 
retaining    sufficient    and    suitable 


servants  for  the  business.  Third, 
to  establish  proper  rules  and  reg- 
ulations for  the  service,  and  hav- 
ing adopted  such  to  conform  to 
them.  All  the  foregoing  duties, 
it  will  be  observed,  are  included 
in  the  one  general  duty  of  the 
master  to  provide  a  safe  plant. 
The  law  is  well  settled  that  the 
master  is  not  required  to  be  a 
guarantor  or  insurer  in  this  be- 
half; but  is  only  required  to  em- 
ploy reasonable  and  ordinary  care 
In  selecting  what  he  requires  and 
is  necessary  for  his  business.  I 
will  add  that  he  must  furnish  a 
safe  place  in  which  a  servant  is 
to  work.* 

"The  doing  of  these  things  is  a 
duty  of  the  master  to  the  servant 
for  the  latter's  safety.  The  mas- 
ter can  either  perform  these  du- 
ties personally,  or  he  may  dele- 
gate their  performance  to  some 
one  else,  whom  the  books  call 
vice-principal,  because  he  stands 
as  to  these  duties  in  the  place  of 
his  master;  but  if  either  fails  in 
the  performance  of  duty  in  any 
of  these  respects,  and  damage  re- 
sults to  a  servant,  the  master 
must  answer.  If,  however,  the 
damaging  negligent  act  is  not  one 
of  the  things  which  rests  on  the 
master  as  a  duty  to  the  servant, 
it  is  the  act  purely  of  a  fellow 
servant,  and  the  injured  servant 
must  look  to  him,  not  to  the  mas- 
ter. These  duties  falling  on  the 
master  to  perform  are  called  in 
the  law  books  non-assignable  du- 
ties because  he  owes  them  to  the 
servant  and  he  cannot  assign 
them  to  another  to  perform  and 
exempt  himself  from  liability  for 
their  misperformance.     These  du- 


684 


CARRIERS  OF  PASSENGERS. 


:§  628. 


commerce  with  foreign  nations  and  among  the  several  states  ^® 
passed  an  act  entitled  "An  Act  relating  to  Liability  of  Com- 
mon Carriers  in  the  District  of  Columbia  and  Territories  and 
Common  Carriers  engaged  in  commerce  between  the  states  and 


ties  are  sometimes  spoken  of  as 
duties  in  construction,  prepara- 
tion, and  preservation,  as  con- 
trasted with  mere  work  of  opera- 
tion. For  instance,  the  construc- 
tion of  the  railroad  or  other  work, 
the  preparation  of  machinery  and 
implements  to  be  used  in  the 
business,  the  preservation  of  the 
tracks  or  working  place,  or  ma- 
chinery and  appliances,  in  proper, 
safe  condition,  and  the  selection 
of  proper  servants  to  work.  The 
master  having  well  done  his  duty 
in  these  things,  their  handling 
and  use  in  the  prosecution  of  the 
work  designed  is  a  work  of  mere 
operation,  and  this  work  the 
servant  must  perform  well  in  the 
interest  of  his  master  and  fellow 
servants,  and  if  one  fails  to  do  so 
and  injures  a  fellow-servant,  the 
master  is  not  liable,  since  he  can- 
not always  stand  by  and  watch 
the  servant  in  his  every  act  in 
the  carrying  on  or  the  operation 
of  the  busin&ss,  and  the  law  of 
necessity  permits  him  to  commit 
his  work  of  mere  operation  to 
other  hands.  To  illustrate:  the 
employer  must  furnish  a  good 
wagon,  railroad  car,  or  brake,  or 
mowing  machine,  and  failing 
herein  to  the  injury  of  his  em- 
ployee using  them  in  ignorance 
of  deficiency,  he  must  repair  the 
Injury.  But  having  them,  if  one 
servant  by  their  careless  use  in- 
jures a  fellow  servant,  the  master 
is  not  liable  to  repair  his  injury. 
For  the  misuse  of  these  things 
by  a  servant  the  master  would  be 
liable  to  strangers,  but  not  to  an- 
other   servant,    because    when    he 


entered  upon  the  service  he  as- 
sumed the  risks  and  dangers  that 
might  occur  in  the  business, 
among  them  the  dangers  that  he 
might  receive  injuries  from  the 
negligence  of  a  fellow  servant.  It 
would  be  unjust  to  make  the  mas- 
ter an  insurer  of  every  servant 
against  the  negligence  of  every 
act  of  other  servants  in  many  in- 
stances numbering  thousands, 
working  over  hundreds  of  miles 
or  a  wide  area  of  territory,  the 
master  necessarily  himself  ab- 
sent. What  man  or  corporation 
engaged  in  any  business  could  en- 
dure such  danger  and  burden?  It 
would  be  a  crying  injustice  to 
the  farmer,  merchant,  coal  opera- 
tor, railroad  or  steamboat,  to  all 
business  operators.  The  law  is 
severe  enough  in  holding  em- 
ployers responsible  for  machin- 
ery, etc.,  as  above  stated,  without 
making  them  guarantors  for  the 
acts  of  every  servant.  You  can- 
not make  the  master  liable  for 
an  act  of  naere  operation,  no  mat- 
ter by  what  servant  done;  you 
cannot  exempt  him  for  an  act  not 
one  of  mere  operation,  but  of  his 
personal  duty  though  done  by 
any  servant." 

In  Sofield  v.  Guggenheim  &  Co., 
64  N.  J.  L.  605,  50  L.  R.  A.  417, 
the  court  follows  the  doctrine  of 
vice-principal  act  rendering  mas- 
ter liable,  and  in  the  opinion  cites 
numerous  authorities. 

The  editorial  notes  in  50  L,.  R. 
A.  417,  are  valuable  and  exhaust- 
ive upon  this  subject. 

20  Sec.  3,  art.  VIII,  Const.  U.  S. 


§    628.]  PASSENGER   CARRIER'S   LIABILITY.  685< 

between  the  states  and  foreign  nations  to  their  employees,"  which 
was  approved  June  11,  1906.  By  this  act  congress  has  under- 
taken to  enlarge  the  liability  of  the  common  carrier,  providing 
among  other  things  that  every  common  carrier  operating  in  the 
District  of  Columbia  or  the  territories  or  engaged  in  interstate 
commerce  "shall  be  liable  to  any  of  its  employees,  or  in  case  of 
his  death  to  his  personal  representatives  for  the  benefit  of  his 
widow  and  children,  if  any,  if  none,  then  for  his  parents,  if  none, 
then  for  his  next  of  kin  dependent  upon  him,  for  all  damages 
which  may  result  from  the  negligence  of  any  of  its  officers, 
agents  or  employees,  or  by  reason  of  any  defects  or  insufficiency 
due  to  its  negligence  in  its  cars,  engines,  appliances,  machinery, 
tracks,  roadbed,  ways  or  works."  What  the  courts  will  do  with 
the  constitutionality  of  this  act  remains  to  be  seen.  It  has  been 
passed  upon  in  some  of  the  circuit  courts  and  pronounced  uncon- 
stitutional, but  the  supreme  court  of  the  United  States  has  not 
yet  construed  it. 

"That  in  all  actions  hereafter  brought  against  any  common 
carrier  to  recover  damages  for  personal  injuries  to  an  employee,, 
or  where  such  injuries  have  resulted  in  his  death,  the  fact  that 
the  employee  may  have  been  guilty  of  contributory  negligence 
shall  not  bar  a  recovery  where  his  contributory  negligence  was 
slight  and  that  of  the  employer  was  gross  in  comparison,  but 
the  damage  shall  be  diminished  by  the  jury  in  proportion  to 
the  amount  of  negligence  attributable  to  such  employee.  All 
questions  of  negligence  and  contributory  negligence  shall  be  for 
the  jury."  The  other  sections  of  the  act  are  not  material  to  our 
discussion. 

It  has  been  urged  that  this  act  is  unconstitutional  for  the  rea- 
son that  congress  has  exceeded  its  delegated  powers  in  enacting 
a  law  which  attempts  to  regulate  commerce  in  the  states,  as  well 
as  interstate  commerce,  the  questions  of  the  nonliability  of  car- 
riers for  injuries  to  servants  by  their  fellow  servants,  and  the 
law  of  contributory  negligence  being  subjects  within  the  con- 
trol of  state  legislatures  and  not  of  congress ;  ^^  that  the  act  is 

27  In  support  of  the  claim  that  eific    v.     Schoer,     114    Fed.     470; 

the    individual    states    may    legis-  Missouri  R.  R.  v.  Mackey,  127  U. 

late  upon   the  subjects   the   cases  S.  206;  Lake  Shore,  etc.  R.  Co.  v. 

relied    on    are    numerous,    among  Ohio,    173    U.    S.    285;    Cleveland, 

them  Tullis  v.  Lake  Erie,  etc.  R.  etc.  R.   Co.  v.  Illinois,  177  U.   S. 

R.,   175  U.   S.   348;    Southern  Pa-  514. 


■686  CARRIERS  OF  PASSENGERS.  [§    628. 

not  a  hnv  for  the  regulation  of  commerce,  in  the  sense  used  in  the 
constitution,  but  one  within  the  general  legislative  powers  of  the 
states; — relying  for  this  position  upon  the  definition  of  Chief 
Justice  Marshall  in  Gihhons  v.  Ogden,^^  where  he  used  this  lan- 
guage :  ' '  What  is  this  power  ?  It  is  the  power  to  regulate ;  that 
is,  to  prescribe  the  rules  by  Avhieh  commerce  is  to  be  governed. ' ' 
On  the  other  hand  it  is  claimed  for  the  act  that  congress  has  the 
power,  and  it  is  conceded,  to  regulate  commerce  among  the  states, 
relying  more  or  less  upon  the  doctrine  as  announced.  In  Balti- 
more, etc.  R.  Co.  V.  Baugh,^^  where  Mr.  Justice  Brewer  in  dis- 
cussing the  question  said:  "Commerce  between  the  states  is  a 
matter  of  national  regulation.  .  .  .  Today  the  volume  of 
interstate  commerce  far  exceeds  the  anticipation  of  those  who 
framed  the  constitution.  .  .  .  The  lines  of  this  very  plaint- 
iff in  error  extend  into  a  half  dozen  or  more  states,  and  its  trains 
are  largely  employed  in  interstate  commerce.  As  it  passes  from 
state  to  state,  must  the  rights,  obligations  and  duties  subsisting 
between  it  and  its  employees  change  at  every  state  line  ?  If  to  a 
train  running  from  Baltimore  to  Chicago,  it  should,  within  the 
limits  of  the  state  of  Ohio,  attach  a  car,  for  a  distance  only  within 
that  state,  ought  the  law  controlling  the  relations  of  a  brakeman 
on  that  car  to  the  company  be  different  from  that  subsisting  be- 
tween the  brakeman  on  through  cars  and  the  company?  .  .  . 
It  is  obvious  that  the  relations  between  the  company  and  em- 
ployee are  not  in  any  sense  of  the  term  local  in  character,  but 
are  of  a  general  nature  and  to  be  determined  by  the  general 
rules  of  the  common  law.  The  question  is  not  local  but  general. ' ' 
In  the  case  of  Brooks  v.  The  Southern  Pacific  Railroad  Co.,^^ 
it  was  held  that  because  the  act  merely  imposes  a  liability  upon 

28  9    Wheat.     (U.    S.)     189-196;  gress  under  its  power  to  regulate 
Addyston  Pipe,  etc.  Co.  v.  United  commerce  among  the  states." 
States,  175  U.   S.  212.  Numerous  cases  might  be  cited 

29  149  U.  S.  378.  And  in  Pierce  as  bearing  upon  this  question,  but 
V.  Van  Dusen,  78  Fed.  Rep.  693,  it  is  not  our  province  to  discuss 
Mr.  Justice  Harlan  in  an  opinion  the  constitutionality  of  this  law, 
involving  the  Employers'  Liabil-  but  simply  to  call  attention  to  the 
ity    Act    said:    "Undoubtedly    the  contention. 

whole   subject  of   the  liability  of  so  This    case   was    tried    in   the 

interstate   railroad   companies  for  United    States    circuit    court    for 

the  negligence   of   those   in   their  the  Western  District  of  Kentucky, 

service    may    be    covered    by    na-  and  decided  by  Judge  Evans,  De- 

tional  legislation  enacted  by  con-  cember  31,  1906 


§    629.]  PASSENGER   CARRIER'S  LIABILITY.  687 

interstate  carriers  to  their  employees  and  does  not  prescribe 
rules  for  carrying  on  commerce  among  the  states,  it  does  not 
regulate  such  commerce  and  is  therefore  beyond  the  power  of 
congress  and  unconstitutional.  And  that  even  if  it  should  be 
considered  an  act  regulating  commerce  among  the  states  in  the 
course  of  such  regulation  it  must  necessarily  regulate  commerce 
within  the  several  states  and  for  this  reason  embraces  a  regula- 
tion which  is  not  within  the  power  of  congress,  the  two  sub- 
jects, the  regulating  of  interstate  commerce  and  intra-state  com- 
merce being  so  connected  in  this  case  that  they  cannot  be  sepa- 
rated and  therefore  the  act  must  be  declared  unconstitutional. 
And  in  the  case  of  Howard,  Adm'x  v.  Illinois  Central  B.  Co.,^^ 
the  act  was  declared  unconstitutional  among  other  things  be- 
cause if  it  regulates  commerce  at  all  it  regulates  intra-state  com- 
merce as  well  as  interstate  commerce.  It  therefore  being  im- 
possible to  separate  these  attempted  regulations  in  the  act  it  is 
unconstitutional.  It  must  be  remembered  in  connection  with 
this  discussion  that  the  states  have  not  delegated  to  the  fed- 
eral government  the  right  to  regulate  commerce  within  the  sev- 
eral states  and  that  the  several  states  have  in  most  cases  passed 
statutes  regulating  the  liability  for  injuries  received  as  the  result 
of  acts  of  fellow  servants. 

§  629.  Passenger  elevators. — The  same  degree  of  re- 
sponsibility attaches  to  those  controlling  and  running  passenger 
elevators.  "Persons  who  are  lifted  by  elevators  are  subjected 
to  great  risks  to  life  and  limb.  They  are  hoisted  vertically,  and 
are  unable,  in  case  of  the  breaking  of  the  machinery,  to  help 
themselves.  The  person  running  such  elevator  must  be  held  to 
undertake  to  raise  such  persons  safely,  as  far  as  human  care 
and  foresight  will  go.  The  law  holds  him  to  the  utmost  care 
and  diligence  of  very  cautious  persons,  and  responsible  for  the 
slightest  neglect.  Such  responsibility  attaches  to  all  persons 
engaged  in  employments  where  human  beings  submit  their 
bodies  to  their  control,  by  which  their  lives  or  limbs  are  put  at 
hazard,  or  where  such  employment  is  attended  with  danger  to 
life  or  limb.  The  utmost  care  and  diligence  must  be  used  by 
persons  engaged  in  such  employment  to  avoid  injury  to  those 
they  carry.     The  care  and  diligence  required  is  proportioned 

SI  Circuit  court  for  the  District  of  Tennessee,  "Western  Division,  opin- 
ion by  Judge  McCall,  January  1,  1907. 


688  CARRIERS   OF  PASSENGERS.  [§    630. 

to  the  danger  to  the  persons  carried.  In  proportioji  to  the  de- 
gree of  danger  to  others  must  be  the  care  and  diligence  to  be  ex- 
ercised ;  where  the  danger  is  great,  the  utmost  care  and  diligence 
must  be  employed.  In  such  cases  the  law  requires  extraordi- 
nary care  and  diligence.  We  know  of  no  employment  where 
the  law  should  demand  a  higher  degree  of  care  and  diligence 
than  in  the  case  of  the  persons  using  and  running  elevators  for 
lifting  human  beings  from  one  level  to  another.  The  danger  of 
those  being  raised  is  great.  When  persons  are  injured  by  the 
giving  way  of  the  machinery  the  hurt  is  always  serious,  fre- 
quently fatal ;  and  the  law  does  and  should  bind  persons  so  en- 
gaged to  the  highest  degree  of  care  practicable  under  the  cir- 
cumstances. It  would  be  injustice  and  cruelty  to  the  public 
for  courts  to  abate  in  any  degree  this  high  degree  of  care. 
The  aged,  the  helpless  and  the  infirm  are  daily  using  these  ele- 
vators. The  owners  make  profit  by  these  elevators,  or  use  them 
for  the  profit  they  bring  to  them.  The  cruelty  from  a  careless 
use  of  such  contrivances  is  likely  to  fall  on  the  weakest  of  tihe 
community.  All,  including  the  strongest,  are  without  the  means 
of  self-protection  upon  the  breaking  down  of  the  machinery.  The 
law,  therefore,  throws  around  such  persons  its  protection  by  re- 
quiring the  highest  care  and  diligence.  The  carrier  of  passengers 
is  under  obligations  to  use  the  utmost  care  and  diligence  in  pro- 
viding safe,  suitable  and  sufficient  vehicles  for  the  conveyance  of 
his  passengers."  ^- 

§  630.  Bound  to  adopt  most  approved  machinery. — 

It  is  said  that  railroads  and  other  carriers  of  passengers  must 
keep  pace  with  science,  art  and  modern  improvements  in  their 
appliances  for  the  carriage  of  passengers.^^  It  is  the  duty  of 
the  carrier  company,  in  this  particular,  to  use  the  best  mechan- 
ical appliances  and  to  exercise  the  highest  degree  of  prudence 
and  skill  in  determining  that  all  their  appliances  are  safe  for 
the  purpose  of  transportation,  and  in  case  an  accident  results 
from  a  failure  to  use  such  appliances,  or  to  exercise  the  proper 
degree  of  care  and  skill,  they  are  liable  in  damages.  This,  how- 
ever, does  not  mean  that  they   are  bound  to   adopt   any  mere 

32  Treadwell  V.  Whittier,  80  Cal.  &    S.    B.    Ry.    Co.,    109    N.    Y.    44; 

574,  5  L.  R.  A.  498;    Baltimore  &  Northern  Pac.  Ry.  Co.  v.  Herbert, 

H.  Ry.  Co.  V.   State,  29  Md.  252;  116  U.  S.  651. 
Va.   Cent.  Ry.   Co.   v.   Sawyer,   15  33  Meier  v.  Pa.  Ry.   Co.,  64   Pa. 

Grat.    (Va.)    230;    Kelly  v.  N.   Y.  St.  225. 


§    631.]  PASSENGER  CARRIER'S  LIABILITY.  689 

speculative  or  untried  experiments;  they  are  not  responsible  for 
the-  unknown  as  well  as  the  new,  but  they  should  adopt  such  im- 
proved and  tried  appliances  as  have  been  tested  and  found  use- 
ful, and  which  materially  contribute  to  the  safety  of  the  passen- 
ger.^* As  was  said  by  Mr.  Justice  Church:  "It  is  established 
that  the  carrier  of  passengers,  especially  in  vehicles  and  convey- 
ances propelled  by  steam  where  the  consequences  of  an  accident 
from  defective  machinery  are  almost  certaiiilj^  fatal  to  human 
life,  is  bound  to  use  every  precaution  which  human  skill,  care 
and  foresight  can  provide,  and  to  exercise  sirailar  care  and  fore- 
sight in  ascertaining  and  adopting  new  improvements  to  secure 
additional  protection. ' '  ^^  But  it  has  been  held  that  while  rail- 
road companies,  as  common  carriers,  are  bound  to  have  such 
vehicles  and  machinery  for  the  transportation  of  goods  as  the 
improvements  known  to  practical  men  and  tested  by  practical 
use  may  suggest,  they  are  not  bound  to  take  every  possible  pre- 
caution which  the  highest  scientific  skill  might  suggest,  nor  to 
adopt  mere  speculative  and  untried  experiments.^*' 

§  631.  Latent  defects. — Where  the  injury  is  the  result 

of  such  a  latent  defect  in  the  appliances  or  machinery  of  the 
carrier  that  no  degree  of  skill,  care  or  foresight  can  detect  it, 
the  carrier  is  not  liable,  for  there  is  no  lack  of  diligence  upon 
his  part;  he  cannot  be  shown  to  have  been  guilty  of  a  degree  of 
negligence  sufficient  to  warrant  a  recovery.  Where  the  injury 
was  caused  by  the  breaking  of  an  axle  of  a  stage-coach,  and  no 
negligence  could  be  shown,  it  was  held,  if  the  axletree  was  sound 
as  far  as  human  eye  could  discover,  the  defendant  was  not  lia- 
ble.^^  And  where  it  appeared  that  the  breaking  of  the  axletree 
of  a  coach  resulted  in  an  accident,  and  tha.t  the  breaking  oc- 
curred because  of  a  very  small  flaw  surrounded  by  sound  iron, 
which  could  not  have  been  discovered  by  the  most  careful  ex- 

3*  Barron  v.  East  Boston  Ferry  matters,  and  in  such  ways,  as  are 

Co.,    11    Allen    (Mass.),    312.      In  appropriate   to   the   business   they 

Warren  v.  Fitchburg,  etc.,  R.  Co.,  have  undertaken,  to  afford  proper 

8  Allen,  227,  the  court  say:  "They  and  reasonable  securities  against 

are  not  to  take  every  possible  pre-  danger." 

caution  to  prevent  injury  for  that  ss  Caldwell  v.  New  Jersey  Steam- 
would    be    inconsistent    with    the  boat  Co.,  47  N.  Y.  282. 
cheapness    and    speed    which    are  se  Steinweig  v.  Erie  Ry.  Co.,  43 
among   the    chief   objects   of   rail-  N.  Y.  123. 

way  traveling.     Their   care   is  to  37  Christy  v.  Griggs,  2  Camp.  79. 
be   exercised   in   relation   to   such 
44 


690  CARRIERS  OF  PASSENGERS.  [§  632. 

temal  examination,  it  was  said  by  the  court:  "Where  the  acci- 
dent arises  from  a  hidden  and  internal  defect,  which  a  careful 
and  thorough  examination  would  not  disclose,  and  which  could 
not  be  guarded  against  by  the  exercise  of  a  sound  judgment  and 
the  most  vigilant  oversight,  then  the  proprietor  is  not  liable  for 
the  injury,  but  the  misfortune  must  be  borne  by  the  sufferer,  as 
one  of  that  class  of  injuries  for  which  the  law  can  afford  no  re- 
dress in  the  form  of  a  pecuniary  recompense. ' '  ^^  And  where 
a  plaintiff  while  a  passenger  on  the  defendant's  road  was  in- 
jured by  an  accident  which  was  caused  by  the  breaking  of  a 
tire  of  one  of  the  wheels  of  the  carriage  in  which  he  was  seated, 
and  it  was  shown  that  such  breaking  was  owing  to  an  air  bubble, 
which  could  neither  be  discovered  in  the  course  of  manufacture 
nor  afterwards,  and  there  was  no  negligence  proven  on  the  part 
of  either  the  manufacturer  or  the  railroad  company,  it  was  held 
that  the  defendant  was  not  liable.^** 

It  will  be  noticed  from  the  line  of  decisions  that  it  is  not  ev- 
ery latent  defect  that  will  excuse  the  carrier;  it  is  only  such  a 
latent  defect  as  no  reasonable  degree  of  human  skill  and  fore- 
sight could  guard  against.  So,  carriers  are  held  to  a  strict  in- 
spection ;  they  are  required  to  make  vigilant  search  for  any  im- 
perfections or  defects  that  might  occasion  an  accident.  If  the 
defect  could  have  been  discovered  by  the  most  careful  and  thor- 
ough examination,  or  if  any  certain  or  satisfactory  test  is  known 
which  is  within  reach  of  the  carrier,  and  he  fails  to  apply  such 
test  but  relies  upon  a  test  which  is  clearly  insufficient,  the  carrier 
would  be  liable.*'^ 

§  632.  English  rule. — Until  the  case  of  ReadJiead   v. 

Midland  By.  Co.,  above  cited,  the  English  courts  had  held  that 
a  latent  defect  would  not  excuse  the  carrier,  but  that  if  the  in- 
jury occurred  from  any  defect  in  the  appliances  of  the  carrier, 
its  vehicles  or  machinery,  the  carrier  was  liable,  resting  their 
opinion  upon  the  ground  that  it  was  a  duty  of  the  carrier  to  fur- 
nish fit  and  safe  appliances,  and  that  a  failure  to  do  so  rendered 
him  liable.     The  leading  English  case  is  that  of  Sharp  v.  Grey,*^ 

38  ingalls     v.     Bills,     9     Mete.  l",   Edwards  v.  Lord,  49  Me.  279; 

(Mass.)   1,  43  Am.  Dec.  346.  Texas  &  P.  R.  Co.  v.  Hamilton,  66 

39Readhead  v.  Midland  Ry.  Co.,  Tex.  95;   Palmer  v.  Delaware,  etc. 

L.  R.  2  Q.  B.  412;   affirmed,  20  L.  Canal  Co.,  120  N.  Y,  170,  17  Am. 

T.   (N.  S.)    628.  St.   Rep.    629,   44   Am.   &  Eng.   R. 

40Hadley  v.  Cross,   34  Vt.  586;  Cases,  298. 

Ingalls  V.   Bills,   9   Mete.    (Mass.)  419   Bing.   457. 


§    633.]  PASSENGER   CARRIER'S  LIABILITY.  691 

where  the  court  virtually  held  that  the  carrier  warranted  the 
sufficiency  of  his  vehicle;  but  since  the  holding  in  Readhead  v. 
Midland  By.  Co.  it  may  be  said  that  the  English  and  American 
rule  is  the  same,  and  that  carriers  are  not  liable  for  injuries  oc- 
casioned by  latent  defects  in  their  appliances  or  vehicles  which 
could  not  by  any  human  care  or  skill  have  been  detected  or  pre- 
vented, but  that  it  is  the  duty  of  the  carrier  to  apply  every 
known  practical  test  for  the  discovery  of  such  defects. 

§  633.  Defects  discoverable  by  manufacturer. — It  has 

been  held  by  a  line  of  authority,  and  perhaps  it  may  be  said  to 
be  the  weight  of  authority,  that  the  carrier  is  liable  for  an  in- 
jury which  is  the  result  of  defects  in  the  appliances,  vehicles  or 
machinery  which,  by  the  inspection  usually  given  to  such  appli- 
ances after  they  are  purchased  and  put  in  service,  could  not 
have  been  discovered,  no  matter  how  thorough  or  competent, 
but  which  could  have  been  discovered  and  know^n  to  the  manu- 
facturer by  the  application  of  reasonable  tests  known  to  skillful 
manufacturers,  and  which  ought  to  be  made  before  delivering 
the  work.  This  rule  may  be  said  to  be  based  upon  the  theory  that 
the  obligation  of  the  carrier  is  to  furnish  suitable  and  fit  con- 
veyance to  the  passenger,  and,  as  has  been  shown,  if  by  the  ex- 
ercise of  the  highest  degree  of  skill  and  prudence  defects  cannot 
be  discovered,  he  may  be  excused,  but  not  otherwise.  So  the 
manufacturer  whom  the  carrier  calls  upon  to  furnish  convey- 
ances, appliances  and  machinery  for  carrying  passengers  is  but 
the  agent  or  servant  of  the  carrier,  and  for  any  negligence  upon 
his  part  in  receiving  and  furnishing  such  conveyance,  machinery 
or  appliances  resulting  in  injury  to  the  passenger  the  carrier  is 
answerable.  In  other  words,  for  the  failure  of  the  manufacturer 
to  discover  any  defects  which  might  be  detected  by  the  applica- 
tion of  the  best  known  tests  of  skillful  manufacturers,  and  which 
occasioned  injury  to  the  passenger,  the  carrier  would  be  liable. 
A  leading  case  upon  this  subject  and  holding  to  this  rule  is  that 
of  Hageman  v.  Western  B.  Corp.,^^  where  Chief  Justice  Gard- 
ner in  discussing  this  doctrine  said:  "The  substance  of  the 
charge  was  that,  although  the  defect  was  latent  and  could  not 
be  discovered  by  the  most  vigilant  external  examination,  yet,  if 
it  could  be  ascertained  by  a  known  test  applied  either  by  the 
manufacturer  or  the  defendant,  the  latter  was  responsible.     In 

42 13  N.  Y.  9,  64  Am.  Dec.  517 


692  CARRIERS  OF  PASSENGERS.  [§  633. 

these  instructions  there  was  no  error."  And  after  quoting  from 
the  opinion  in  Ingalls  v.  Bills,  where  it  was  held  that  a  carrier 
was  not  liable  for  an  injury  which  resulted  in  the  breaking  of 
the  axle  of  a  stage-coach,  the  fracture  being  occasioned  by  rea- 
son of  a  defect  which  was  entirely  surrounded  by  iron  and  there- 
fore latent,  the  chief  justice  further  says :  "I  concur  in  that  de- 
cision in  the  particular  case  presented;  but  the  learned  judge  did 
not  intimate  'that  a  sound  judgment  and  the  most  vigilant  over- 
sight' would  be  evidenced  by  the  adoption  of  the  same  methods 
of  examination  in  the  case  of  a  stage-coach  and  a  car  for  the  ex- 
press train  of  a  railroad.  The  mode  of  construction,  the  pur- 
poses to  be  subserved,  and,  above  all,  the  probable  consequences 
of  a  hidden  defect  in  the  two  cases,  are  altogether  different.  It 
might  as  plausibly  be  urged  that  a  chain  for  agricultural  pur- 
poses and  the  cable  of  a  ship  of  the  line  should  be  subjected  to 
the  same  tests,  because  both  were  chains  and  each  manufactured 
of  the  same  material.  Keeping  the  distinction  indicated  in  view, 
the  charge  was  sufficiently  favorable  to  the  defendant.  .  .  . 
It  was  said  that  carriers  of  passengers  are  not  insurers.  This 
is  true.  That  they  were  not  required  to  become  smelters  of  iron, 
or  manufacturers  of  cars,  in  the  prosecution  of  their  business. 
This  also  must  be  conceded.  What  the  law  does  require  is  that 
they  shall  furnish  a  sufficient  car  to  secure  the  safety  of  their 
passengers  by  the  exercise  of  the  'utmost  care  and  skill  in  its 
preparation.'  They  may  construct  it  themselves,  or  avail  them- 
selves of  the  services  of  others;  but  in  either  ease  they  engage 
that  all  that  well  directed  skill  can  do  has  been  done  for  the  ac- 
complishment of  this  object.  A  good  reputation  upon  the  part 
of  the  builder  is  very  well  in  itself,  but  ought  not  to  be  accepted 
by  the  public,  or  the  law,  as  a  substitute  for  a  good  vehicle. 
What  is  demanded,  and  what  is  undertaken  by  the  corporation, 
is  not  merely  that  the  manufacturer  had  the  requisite  capacity, 
but  that  it  was  skillfully  exercised  in  the  particular  instance.  If 
to  this  extent  they  are  not  responsible,  there  is  no  security  for 
individuals  or  the  public. ' '  ** 

43  Treadwell  v.  Whittier,  80  Cal.  point  of  its  line  to  another,  there 

574.   In   Philadelphia,    etc.    Co.   v.  arises  an  implied  contract  on  the 

Anderson,  94  Pa.   St.  351,  it  was  part  of  the  company  that  it  has, 

said:   "Where  for  a  consideration  for  that  purpose,  provided  a  safe 

a    railroad    company    undertakes  and   suflBcient   road   and   that   its 

to  transport  a  passenger  from  one  cars    are    safe    and    trustworthy. 


§    633.]  PASSENGER  CARRIER'S  LIABILITY.  693 

A  contrary  doctrine,  however,  is  held  by  the  supreme  court 
of  Tennessee  and  also  by  the  supreme  court  of  Michigan.**  The 
opinion  of  the  Michigan  court,  by  Campbell,  C.  J.,  is  strong  in 
its  logic  and  reasoning.  He  says :  "  It  was  held  by  the  court  be- 
low that  no  diligence  or  care  in  the  railroad  company  could  ex- 
empt them  from  want  of  care  in  the  manufacture  of  the  cars 
and  axles.  This  doctrine  is,  we  think,  entirely  incorrect.  Car- 
riers of  freight  are  liable,  whether  careful  or  not,  for  any  act  or 
damage  not  caused  by  the  act  of  God  or  of  the  public  enemy. 
Their  liability,  therefore,  does  not  arise  from  negligence  or  want 
of  care.  It  arises  from  their  failure  to  make  an  absolutely  safe 
carriage  and  delivery,  which  they  insure  by  their  undertaking. 
The  analogies  of  carriers  of  freight  have  nothing  to  do  with  pas- 
senger carriers.  These  are  liable  only  when  there  has  been  act- 
ual negligence  of  themselves  or  their  servants.  If  they  exer- 
cise their  functions  in  the  same  way  with  prudent  railway  com- 
panies, generally,  and  furnish  their  road  and  run  it  in  the  cus- 
tomary manner,  which  is  generally  found  a? id  believed  to  be 
safe  and  prudent,  they  do  all  that  is  incumbent  upon  them. 
This  general  doctrine  the  court  below  laid  down  very  clearly, 
but  qualified  it  so  as  to  make  them  absolutely  responsible  for 
the  omissions  or  lack  of  skill  or  attention  of  the  manufacturers 
from  whom  they  made  their  purchases  of  stoclc,  however  high  in 
standing  and  reputation  as  reliable  persons.  There  is  no  prin- 
ciple of  law  which  places  such  manufacturers  in  the  position  of 
agents  or  servants  of  their  customers.  The  ]aw  does  not  con- 
template that  railroad  companies  wiU,  in  general,  make  their 
own  cars  or  engines,  and  they  purchase  them  in  the  market,  of 
persons  supposed  to  be  competent  dealers,  just  as  they  buy  their 
other  articles.  All  that  they  can  reasonably  be  expected  to  do 
is  to  purchase  such  cars  and  other  necessaries  as  they  have  rea- 
son to  believe  will  be  safe  and  proper,  giving  them  such  inspec- 
tion as  is  usual  and  practicable  as  they  buy  them.  When  they 
make  such  an  examination,  and  discover  no  defects,  they  do  all 

And  where  a  person  is  injured  by  facie  case  is  thus  made  out  and 

an   accident   arising   from   a   col-  the  onus  is  cast  upon  the  carrier 

lision,  or  a  defect  in  the  machin-  to  disprove  negligence." 
ery  or  roadway,  he  is  required,  in  4*  Nashvile,  etc.  Ry.  Co.  v.  Jones, 

the  first  place,  to  prove  no  more  9  Heisk.     (Tenn.)   27;   C.  R.  &  I. 

than  the  fact  of  the  accident  and  Ry.  Co.  v.  Huntley,  38  Mich.  587, 

the  extent  of  the  Injury;  a  prima  31  Am.  Rep.  321. 


694  CARRIERS  OF  PASSENGERS.  [§    634. 

that  is  practicable,  and  it  is  no  neglect  to  omit  attempting  what 
is  impracticable.  They  have  a  right  to  assume  that  a  dealer  of 
good  repute  has  also  used  such  care  as  was  incumbent  on  him, 
and  that  the  articles  purchased  of  him  which  seem  right  are 
I'ight  in  fact.  Any  other  rule  would  make  them  liable  for  what 
is  not  negligence,  and  put  them  practically  on  the  footing  of  in- 
surers. The  law  has  never  attempted  to  hold  passenger  carriers 
for  anything  which  they  could  not  avoid  by  their  own  dili- 
gence. ' '  *^ 

II. 

Liability  Growling  Out  op  Duty  to  Passengers  "While  in 

Transit. 

§  634.  The  degree  of  care  required. — That  same  high  degree 
of  care  and  diligence,  "the  utmost  care  and  diligence  which 
human  prudence  and  foresight  will  suggest,"  is  required  of  the 
carriers  of  passengers  in  operating  the  machinery,  appliances 
and  vehicles  employed  by  them  in  their  business,  and  this  re- 
quirement rests  upon  every  passenger  carrier, — the  stage-coach 
proprietor,  the  street-car  operator,  the  railroad  company,  ferry 
companies,  proprietors  of  passenger  elevators, — all  who  are  en- 
gaged in  transporting  passengers. "  ^^  As  has  been  observed,  the 
degree  of  diligence  depends  almost  entirely  upon  the  elements 

•45  Grand  Rapids,  etc.  Ry.  Co.  v.  the    servant's    employment,    very 

Ifuntley,  38  Mich.  537-546.  many  authorities  are  cited. 

4«  While     the    carrier    is    held  In  Goddard  v.  Grand  Trunk  R. 

bound  to  exercise  the  highest  de-  Co.,  57  Me.  202,  2  Am.  Rep.  37,  a 

gree   of   care  for   the   safety   and  passenger    was    assaulted    by    a 

protection  of  the  passenger,  and  brakeman  and  the  company  was 

is  responsible  for  the  negligence  held    liable.     Craker    v.    Chicago, 

of  his   servants   which   results   in  etc.  R.   Co.,   36  Wis.   637,   17  Am. 

injiiry    to    the    passenger    though  Rep.  504;  Birmingham,  etc.  R-  Co. 

not  within  the  scope  of  the  serv-  v.  Baird,  130  Ala.  334,  30  So.  456, 

ant's   employment,  the   rule   does  54    L.    R.    A.    752;     New    Jersey 

not  go   to  the  extent   of  holding  Steamboat  Co.  v.  Brockett,  121  U. 

the  carrier  as  an  insurer  of  the  S.    637;    Wabash,    etc.    R.    Co.    v. 

personal  safety  of  the  passenger.  Rector,   104,  111.   296;    Johnson   v. 

Taillon  v.  Mears  et  al.,  29  Mont.  Detroit,  etc.  R.  Co.,  130  Mich,  453; 

161,    1   Am.    &    Eng.    Ann.    Cases  Ricketts  v.  Chesapeake,  etc.  R.  Co., 

C13,  and  notes.  33  W.  Va.  433;  Palmer  v.  Manhat- 

That   the    carrier    is    liable    for  tan,    etc.    R.   Co.,    133    N.    Y.    261; 

the    negligence    of    his    servants  Smith  v.  Manhattan  R.  Co.,  45  N. 

though    not   within    the    scope   of  Y.  S.  865.  Some  of  the  earlier  New 


§  635.] 


PASSENGER  CARRIER'S  LIABILITY. 


695 


of  danger  that  surround  the  business  in  which  the  carrier  is  en- 
gaged. As,  for  example,  the  same  degree  of  diligence  is  not  re- 
quired of  the  proprietor  of  a  stage-coach  or  a  canal-boat  owner 
as  would  be  required  of  those  using  steam  or  electricity  for  mo- 
tive power,  and  driving  their  vehicles  at  a  high  rate  of  speed 
through  the  streets  of  crowded  cities,  or  over  their  tracks  in  the 
country ;  and  yet  the  law  requires  the  same  degree  of  diligence, 
modified  only  by  the  hazards  and  dangers  attending  upon  the 
particular  undertaking.  Proportionately  to  the  hazards  of  the 
business  is  the  degree  of  diligence  and  care  that  is  required."  *' 
§  635.  Depots — Waiting-rooms — Approaches  and  exits  from 
premises  and  vehicles. — The  carrier  of  passengers  is  not  held 
to  that  high  degree  of  diligence  and  care  in  providing  and  car- 
ing for  its  depots,  waiting-rooms,  platforms,  docks,  approaches 
and  exits  as  obtains  in  the  operation  of  its  passenger  trains, 
boats  or  vehicles.  Its  duty  as  to  the  former  is  to  provide  a  rea- 
sonably safe  place  for  the  accommodation  of  those  awaiting  the 
arrival  or  departure  of  trains  or  conveyances  of  the  carrier,  and 
reasonably  safe  approaches  and  exits  to  and  from  their  vehicles, 


York  cases  do  not  hold  to  this  rule, 
but  latterly  that  court  so   holds. 

47  In  Weisshaar,  Adm'x,  etc.  v. 
Kimball  Steamship  Co.,  128  Fed. 
397,  65  L.  R.  A.  84,  the  U.  S.  Ct. 
Court  of  Appeals  held  the  owner 
of  a  steamship  liable  for  the 
death  of  a  passenger  drowned  by 
the  swamping  of  a  boat  sent  to 
convey  him  from  the  shore  to  the 
vessel  when  the  officer  in  charge 
of  the  boat  permitted  it  to  at- 
tempt the  journey  in  an  over- 
loaded condition,  although  the 
passengers  were  guilty  of  con- 
tributory negligence  in  failing  to 
leave  the  boat  when  told  that  it 
was  overloaded  and  requested  to 
do  so.  Cases  are  collected  in  the 
notes  and  briefs  in  L.  R.  A.  above 
cited. 

It  has  been  held  to  be  gross 
negligence  for  a  street  car  com- 
pany to  run  open  cars  passing 
each  other  on  tracks  which  leave 


only  three  inches  between  the 
cars,  with  runnirug  rail  placed 
where  passengers  would  naturally 
rest  their  arms  on  the  side  next 
to  the  passing  car.  Georgetown, 
etc  R.  Co.  V.  Smith,  25  App.  D. 
C.  259,  5  L.  R.  A.  (N.  S.)  274— 
notes  and  cases  cited. 

Starting  street  car  while  pas- 
senger is  boarding  it.  Clark  v. 
Durham,  etc  Co.,  138  N.  C.  77, 
50  S.  E.  58;  Bedington  v.  Harris- 
burg,  etc.  Co.,  210  Pa.  648,  60  A. 
305;  Hatch  v.  Philadelphia,  etc. 
R.  Co.,  212  Pa.  29,  61  A.  480. 

As  to  care  of  an  intoxicated 
person  traveling  on  the  platform 
of  a  car.  Fox  v.  Mich.  Cent.,  138 
Mich.  433,  5  Am.  &  Eng.  Ann. 
Cases  68,  and  cases  collected  and 
discussed  in  note  pp.  72,  73,  also 
see  discussion  on  Contributory 
Negligence  of  Passenger,  notes, 
p.  72. 


696 


CAERIERS  OF  PASSENGERS. 


[§   635. 


taking  such,  precaution  for  the  safety  of  those  using  these  facili- 
ties as  would  be  taken  by  a  reasonably  prudent  and  cautious 
man  under  just  such  circumstances.*^ 


*8  In  order  to  bring  one  in  a 
station  house  within  the  pro- 
tection of  the  legal  duties  owing 
by  a  common  carrier,  he  must  go 
at  a  reasonable  time,  in  a  pro- 
per manner  and  by  the  purchase 
of  a  ticket  or  otherwise  indicate 
his  intention  to  become  a  passen- 
ger. Fremont,  etc.  R.  Co.  v. 
Hagblad,  72  Neb.  773  (1904),  101 
N.  W.  1033,  4  L.  R.  A.  (N.  S.)  254 
and  notes  citing  authorities. 
Where  the  plaintiff  had  done 
nothing  to  indicate  a  purpose  to 
become  a  passenger.  Hicks  v. 
Union,  etc.  Co.,  —  Neb.  (1906), 
107  N.  W.  798. 

Kirby  v.  Delaware,  etc.  Co.,  46 
N.  Y.  Supp.  777;  Kelly  v.  Man- 
hattan, etc.  Co.,  112  N.  Y.  443; 
Buck  V.  Railway  Co.,  134  N.  Y. 
589,  31  N.  E.  628;  111.  Cent.  R.  Co. 
V.  Hobbs,  58  111.  App.  130;  Toledo, 
etc.  Ry.  Co.  v.  Crush,  67  111.  262; 
Falls  V.  Railway  Co.,  97  Cal.  114; 
Pa.  Ry.  Co.  v.  Merriam,  123  Ind. 
415;  Gunderman  v.  Railway  Co., 
58  Mo.  App.  370;  Lucas  v.  Pa. 
Co.,  120  Ind.  205;  Hiatt  v.  Rail- 
way Co.,  96  Iowa,  169,  64  N.  W. 
766;  Mo.  Pac.  Ry.  Co.  v.  Wort- 
ham,  73  Tex.  75.  The  supreme 
court  of  Michigan,  in  Mich.  Cent. 
Ry.  Co.  V.  Coleman,  28  Mich.  440, 
447,  say:  "Except  in  a  very  gen- 
eral way,  the  regulations  which 
safety  requires  in  one  case  do 
not  very  closely  resemble  those 
needed  in  another.  It  is  very 
plain  that  presumption  of  fact 
may  be  properly  raised  under 
some  circumstances,  from  the  na- 
ture of  the  casualty,  which 
could  not  arise  or  demand  ex- 
planation   in    another.      For    ex- 


ample, where  a  passenger  is 
quietly  seated  in  a  car,  and  is  in- 
jured by  a  collision,  or  a  break- 
down, or  by  the  cars  leaving  the 
track,  there  can  be  no  room  for 
any  inquiry  on  the  question  of  com- 
tributlve  negligence.  The  rule 
of  care  and  caution  to  be  applied 
in  any  case  must  properly  be  one 
required  by  the  nature  of  the  case, 
and  such  as  the  circumstances 
call  for.  And,  in  considering  pre- 
cedents, we  can  never  leave  out 
of  view  the  peculiar  circum- 
stances which  may  or  may  not 
require  the  same  conduct  neces- 
sary in  others.  Perhaps  as  neat 
a  statement  of  this  principle  as 
has  been  given  is  found  in 
Blamires  v.  Lancashire  &  York- 
shire R.  W.  Co.,  L.  R.  8  Exch. 
283.  In  that  case  the  question 
was  whether  a  failure  of  provid- 
ing means  of  communication 
with  the  persons  in  charge  could 
be  allowed  to  go  to  the  jury,  and 
there  being  evidence  that  such 
means  were  well  known,  and  that 
they  might  have  prevented  the 
mischief,  the  jury  were  allowed 
to  consider  it.  Brett,  J.,  in  giving 
the  reasons  for  his  concurrence 
in  that  view,  said:  'It  is  an 
action  for  negligence,  and  the 
plaintiff  is  bound  to  prove  that 
the  railway  company  have  been 
guilty  of  doing  something  which 
a  railway  company  of  ordinary 
care  would  not  do,  or  omitting  to 
do  something  which  a  railroad 
company  of  ordinary  care  would 
do.'  And  there  being  evidence 
that  such  precautions  were  cus- 
tomary among  companies  of  or- 
dinary  care,   he   was   of   opinion 


§  636.] 


PASSENGER  CARRIER'S  LIABILITY. 


697 


§  636.  Same  subject. — At  what  particular  time  and  place  the 
care  and  diligence  increases  as  the  passenger  enters  upon  the 
premises  of  and  takes  passage  upon  the  vehicle  of  the  carrier,  or 
where  it  lessens  as  the  passenger  alights  from  the  vehicle  and 
leaves  the  premises,  it  is  difficult  to  state.  In  determining  this, 
regard  must  at  all  times  be  had  to  the  surroundings.*^  For  ex- 
ample, a  passenger  leaving  a  steamboat  may  be  in  very  great 
peril  in  crossing  the  gang-plank,  and  in  the  same  peril  in  taking 
passage;  the  coach  proprietor  may  land  his  passengers  in  a  very 
unsafe  and  dangerous  place ;  the  railroad  company  may  unload 
its  passengers  among  tracks  and  switches  and  running  engines, 
or  upon  a  platform  which  is  comparatively  safe  and  apart  from 
any  of  the  dangers  of  its  business.  The  degree  of  care  must,  as 
we  have  often  said,  be  dependent  upon  the  hazards  and  dangers 
that  must  necessarily  be  encountered  by  the  passenger. 


the  case  was  one  for  the  jury. 
And  Grove,  J.,  said:  'If  a  par- 
ticular precaution  has  not  been 
hitherto  known  or  used,  or  if  its 
use  is  obscure,  the  omission  of  it 
is  not  negligence;  but  if  it  is 
used  to  any  considerable  extent, 
that  changes  the  case,  and  makes 
the  omission  some  evidence  of 
negligence.'  The  degree  of  care 
required  in  any  business  must  be 
proportionate  to  its  nature  and 
risks,  and  the  business  of  rail- 
roads is  one  of  great  risks  and 
requiring  great  caution.  But  the 
law  cannot  require  business  to  be 
conducted  upon  an  unusual  basis. 
It  is  only  experience  and  advancing 
knowledge  that  enable  remedies 
to  be  adopted  for  dangers  that 
have  not  been  so  common  or  seri- 
ous in  their  consequences  as  to 
turn  attention  to  their  removal. 
And  changes  in  methods  of  doing 
business,  or  differences  of  method 
between  different  parties  en- 
gaged in  it,  are  quite  as  likely 
to  imperil  safety  by  the  uncer- 
tainty and  perplexity  to  which  all 
persons  would  be  exposed  as  the 
failure  of  any  one  to  adopt  some 


possible  safeguard  that  has  not 
usually  been  adopted.  All  rules 
applied  must  be  reasonable  and 
not  oppressive,  and  must  be  ap- 
plied with  reference  to  the  or- 
dinary conduct  of  affairs.  Every 
one  has  a  right  to  expect  that 
railroads  will  be  managed  ac- 
cording to  the  common  custom, 
and  railroad  companies  have  a 
right  in  their  turn  to  expect  con- 
formity to  this.  Every  person 
dealing  with  them  has  his  own 
duties  to  perform  in  harmony 
with  theirs."  Cross  v.  Lake 
Shore  R.  Co.,  69  Mich.  363; 
Cooley  on  Torts,  605,  607;  Co- 
tant  V.  Boon,  etc.  Ry.  Co.,  125 
Iowa,  43,  69  L.  R.  A.  982  and  notes 
and  cases  cited. 

49  From  the  time  the  passenger 
places  himself  under  the  charge 
of  the  carrier  as  he  begins  his 
journey  until  he  is  offered  the 
opportunity  to  leave  the  premises 
of  the  carrier  at  its  termination 
he  is  a  passenger,  unless  by  some 
act  not  attributable  to  the  car- 
rier the  relation  ceases.  Fre- 
mont, etc.  R.  Co.  V.  Hagblad,  72 
Neb.  773,  101  N.  W.  1033. 


698 


CARRIERS  OF  PASSENGERS. 


[§  637. 


§  637.  Overloading  and  overcrowding  vehicles. — The  carrier 
is  not  only  bound  to  furnish  conveyance  for  all  who  apply,  sub- 
ject to  the  few  limitations  noticed,  but  he  must  furnish  safe  and 
reasonably  comfortable  accommodations.  By  a  system  of  inspec- 
tions and  licenses,  the  carriage  by  steamboats  is  regulated  as  to 
the  number  they  are  permitted  to  carry;  but  while  there  is  no 
legal  restrictions  fixing  the  number  that  coaches  and  railroads 
shall  carry,  it  is  well  settled  that  they  should  convey  only  what 
their  vehicles  will  reasonably  accommodate.  Where  it  appears 
that  the  carrier  company  had  admitted  passengers  upon  its  cars 
until  all  the  seats  were  taken  and  passengers  were  compelled  to 
stand  up  in  the  aisles  and  on  the  platforms  of  the  cars,  and  that 
the  plaintiff,  while  standing  on  the  platform,  was  thrown  off 
and  injured,  a  judgment  for  the  plaintiff  was  sustained  upon  the 
theory  that  the  jury  might  find  from  the  circumstances  that  the 
carrier  was  guilty  of  negligence  in  overloading  the  cars.^°  Where 


50  Trumbull  v.  Ericson,  97  Fed. 
891;  Graham  v.  McNeal,  55  Pac. 
(Wash.)  63;  Chesapeake  &  Ohio 
V.  Clowes,  93  Va.  189,  24  S.  E. 
833. 

In  Lynn  v.  Southern  P.  R.  Co., 
103  Cal.  7,  36  Pac.  1018,  24  L.  R. 
A.  710,  where  the  plaintiff  a 
passenger  was  unable  to  find 
room  inside  a  car  and  therefore 
stood  upon  the  platform,  from 
which  he  was  thrown,  and  in- 
jured, in  affirming  the  judgment 
for  the  plaintiff  the  court  said: 
"The  defendant  should  not  have 
allowed  so  many  passengers  to 
have  gone  upon  its  cars,  and  if  it 
was  unable  to  prevent  them  from 
so  doing,  it  had  the  right  to  re- 
fuse to  move  the  train  under  such 
circumstances;  but  if  it  did  not 
pursue  that  course,  and  under- 
took to  transport  all  passengers 
that  were  on  board,  whether 
within  the  cars  or  upon  the  plat- 
form, it  was  under  obligation  to 
exercise  the  additional  care  com- 
mensurate with  the  perils  and 
danger  surrounding  the  passenger 


by  reason  of  the  overcrowded 
condition  of  the  cars."  Weiss- 
haar,  Adm'x,  etc.  v.  Kimball 
Steamship  Co.,  128  Fed.  397,  65 
L  R.  A.  84,  and  see  briefs  and 
notes  in  L.  R.  A.  Rep.  cited,  Al- 
ton, etc.  Co.  V.  Oiler,  217  111.  15, 
75  N.  E.  419,  4  L.  R.  A.  (N.  S.) 
399. 

In  case  of  overcrowded  and 
overloaded  street  cars  question  of 
negligence  left  to  jury.  Jacobs  v. 
West  End  R.  Co.,  178  Mass.  116, 
59  N.  E.  639;  Burns  v.  Boston 
Elev.  R.  Co.,  183  Mass.  96,  66  N. 
B.  418.  It  has  been  held  to  be 
negligence  to  carry  on  street  cars 
a  number  of  persons  greatly  in 
excess  of  the  car's  capacity,  so 
that  passengers  are  compelled  to 
stand  on  the  platform  and  steps, 
and  to  load  them  beyond  any 
reasonable  and  proper  limit  it  has 
been  held  to  be  gross  negligence. 
Pray  v.  Omaha  St.  Car  Co.,  44 
Neb.  167,  48  Am.  St.  Rep.  717,  62 
N.  W.  447;  Richmond,  etc.  Co.  v. 
Garthright,  92  Va.  C27,  32  L.  R. 
A.  220,  53  Am.  St.  839;   Bumbear 


§    637.]  PASSENGER   CARRIER'S  LIABILITY.  699 

one  upon  a  crowded  street-ear  found  standing  room  upon  the 
front  platform,  where  he  was  compelled  to  stand  with  one  foot 
upon  the  step  and  the  other  upon  the  platform,  holding  on  by 
his  hands,  and  while  riding  in  this  way  a  movement  of  the  per- 
sons upon  the  platform  with  him  caused  him  to  lose  his  hold, 
which  he  was  unable  to  regain,  and  by  the  pressure  of  the  crowd 
he  was  forced  off  the  car,  falling  under  the  wheels  which  crushed 
his  left  leg,  rendering  amputation  necessary,  it  was  held  to  be  a 
question  of  fact  whether  such  overcrowding  of  the  car  was  negli- 
gence. The  court  say :  ' '  The  exposure  of  a  passenger  to  danger, 
which  the  exercise  of  a  reasonable  foresight  would  have  antici- 
pated, and  due  care  avoided,  is  negligence  on  the  part  of  the  car- 
rier ;  that  it  may  not  be  held,  as  matter  of  law,  that  the  exercise 
of  a  reasonable  foresight  will  not  lead  a  street  railway  company 
to  anticipate  that  overcrowding  of  its  cars  and  their  platforms 
will  render  accidents  to  passengers  probable;  but  the  question 
whether  it  is  chargeable  with  negligence  in  permitting  such  over- 
crowding is  one  of  fact."  ^^  Where  one  entered  one  of  the  car- 
rier's regular  trains  which  was  about  to  start,  and,  before  he 
learned  he  could  not  get  a  seat,  the  train  was  going  at  a  high  rate 
of  speed,  and  on  being  asked  the  conductor  refused  him  a  seat, 
whereupon,  his  fare  being  demanded,  he  offered  to  pay  if  a  seat 
was  furnished,  but  refused  if  it  was  not,  it  was  held  that  he  had 
a  right  to  refuse  payment  of  fare,  and  by  so  doing  he  did  not 
become  a  trespasser  on  the  train,  for  a  passenger  has  a  right  to  be 
provided  w^ith  a  seat.^^  The  court,  in  the  course  of  the  opinion, 
say:  "It  is,  in  general,  the  duty  of  a  railroad  company  to  pro- 
vide sufficient  cars  to  carry  all  who  have  occasion  to  travel  on 
its  line  of  road.  As  the  law  does  not  require  unreasonable 
things,  a  single  instance,  or  occasional  instances,  of  insufficiency 
in  the  amount  of  means  to  travel,  caused  by  a  rush  of  travel 

V.    United    Traction    Co.,    198    Pa.  si  Lehr  v.   S.   &  K.   R.  Ry.  Co., 

198,  47  Atl.  961.     McCaw  v.  Union  118  N.  Y.  556;  West  Chicago,  etc. 

Traction  Co.,  205  Pa.  271,  54  Atl.  Co.  v.  McNulty,  64  III.  App.  549. 

893.  Passenger  thrown  from  over-  52  Hardenberg  v.   St.   Paul,  etc. 

crowded  car  going  around  curve-  R.  Co.,  39  Minn.  3;  Louisville,  etc. 

Hess    V.     Meriden,    etc.     Co.,     75  Ry.    v.    Patterson,    69    Miss.    421. 

Conn.  571,  54  Atl.  299;  Zimmer  v.  See  also  the  last  above  case  as 

Fox,  etc.  Co.,  118  Wis.  614,  95  N.  reported  in  22  L.  R.  A.  259,  with 

W.  957;   and  see  notes  and  cases  notes  of  cases, 
collected,  4  L.  R.  A.  (N.  S.)  p.  399 


700  CAERIERS  OF  PASSENGERS.  [§    638. 

not  reasonably  to  be  expected  by  the  company,  would  probably 
be  excused ;  and  the  railroad  company,  like  all  other  common  car- 
riers of  passengers,  must  provide  those  whom  it  carriers  with  the 
usual  reasonable  accommodations  for  comfort  in  traveling,  in- 
cluding seats.  This  is  too  well  established  to  need  citation  of  au- 
thorities."  The  consensus  of  the  authorities  seems  to  be  that 
while  it  is  the  duty  of  the  common  carrier  of  passengers  to  fur- 
nish reasonable  accommodations  for  their  passengers,  which 
would  include  seats  in  their  passenger  cars,  unless  it  should  be 
upon  some  unexpected  occasion  when  there  was  a  great  rush  of 
travel,  the  paSsenger  would  not  be  upheld  in  refusing  to  pay  his 
railroad  fare,  unless  he  was  upon  the  train  and  could  not  leave  it, 
but  would  have  the  option  to  continue  the  journey  or  to  leave 
the  train  at  the  first  opportunity,  and  being  compelled  to  thus 
leave  the  train  might  have  an  action  against  the  carrier  for  what- 
ever damage  resulted  therefrom.  The  authorities  also  held  that 
if  the  passenger,  because  of  overcrowded  trains,  is  compelled  to 
violate  some  of  the  reasonable  regulations  of  the  company,  like 
standing  upon  the  platform,  and  while  doing  so  is  injured,  he 
will  not  be  held  to  be  guilty  of  contributory  negligence,  and  the 
carrier  may  be  held  liable  for  any  damage  that  results  from  an 
injury  received  at  such  a  time  if  it  should  be  found  that  the 
overloading  or  overcrowding  of  the  train  was  negligence  upon 
the  part  of  the  carrier;  and  the  same  liability  may  be  said  to 
attach  to  street-car  companies,  or  to  any  other  carrier  of  pas- 
sengers. 

§  638.  Liability  of  carrier  for  abuse  of  passengers. — The 
passenger  is  entitled  to  protection  from  assaults  or  abuse  from 
the  carrier  and  his  servants,  and  also  from  fellow  passengers  and 
even  strangers.  While  a  passenger,  he  is  to  a  certain  extent  un- 
der the  control  of  the  carrier  and  at  all  times  entitled  to  his  pro- 
tection.^^    The  passenger  is  invited  to  occupy  the  waiting-rooms 

53  Brown  v.  Chicago,  etc.  R.  Co.,  cise  of  due  care  to  have  known 

139  Fed.  972,  2  L   R.  A.   (N.  S.)  from  the  attendent  facts  and  cir- 

105.     It   was    held    in    this    case  cumstances,   that  the  injury  was 

that    the    liability    oif    defendant  threatened  or  impending  and  that 

carrier     for     injury     of     plaintiff  by  the  exercise  of  the  high  degree 

passenger   by   a   fellow-passenger  of  care  required  of  carriers,  could 

depended  upon  evidence  showing  have  been  avoided, 
that   the    employes   of   defendant  In  the  note  in  L.  R.  A.  report 

carrier   knew   or  ought   by   exer-  cited,  several  cases  are  collected 


§    638.]  PASSENGER  CARRIER'S  LIABILITY.  701 

of  the  carrier,  is  required  to  travel  over  the  way  prepared  by 
him  in  order  to  take  passage  upon  his  conveyance,  and,  if  he 
be  conveyed,  has  no  choice  as  to  the  time  or  manner  except  as 
to  the  several  hours  at  which  the  carrier  departs,  or  of  the  con- 
veyances employed.  Where  the  plaintiff  boarded  the  platform 
of  a  baggage  car  on  the  carrier's  road  to  ride  to  a  place  where 
the  cars  were  being  backed  to  make  up  a  train,  the  carrier's  or- 
der forbidding  all  persons  except  certain  employees  to  ride  on 
the  baggage  cars,  and  directing  baggagemen  to  rigidly  enforce 
the  rule,  and  where,  as  it  appeared,  the  carrier's  baggageman  or- 
dered the  plaintiff  off  while  the  car  was  in  motion,  and  the  plaint- 
iff replied  that  he  could  not  get  off  because  of  a  pile  of  wood 
near  the  track,  whereupon  the  baggage-master  of  the  carrier 
kicked  him  off  and  he  fell  against  the  wood  and  then  under  the 
car  and  was  injured,  in  an  action  to  recover  damages  it  was  held 
that  the  fact  that  the  plaintiff  was  a  trespasser  was  no  defense, 
and  that  the  evidence  was  sufficient  to  authorize  the  submission 
of  the  defendant's  liability  to  a  jury;  and  the  court  refused  to 
disturb  a  judgment  which  had  been  obtained  by  the  plaintiff.^* 
The  court  in  the  opinion  say :  "  It  is,  in  general,  sufficient  to  make 
the  master  responsible  that  he  gave  to  the  servant  an  authority, 
or  made  it  his  duty,  to  act  in  respect  to  the  business  in  which  he 
was  engaged  when  the  wrong  was  committed,  and  that  the  act 

showing  the  different  doctrines  Iowa,  580,  29  N.  W.  618;  Mullen  v. 
held  upon  this  subject.  One  line  Wisconsin,  etc.  Co.,  46  Minn.  474, 
of  cases  holding  that  the  carrier  49  N.  W.  249. 
will  be  held  to  the  same  high  But  where  the  carrier  knows  or 
degree  of  diligence  that  is  re-  has  opportunity  to  know,  of  a 
quired  of  him  in  providing  suit-  threatened  injury,  and  proper 
able  safe  machinery,  while  an-  precautions  are  not  taken,  corn- 
other  class  hold  that  he  will  be  pany  is  liable.  Savannah,  etc.  R. 
held  to  ordinary  diligence  only.  Co.  v.  Boyle,  115  Ga.  836,  42  S.  E. 
Britton  v.  Atlanta,  etc.  R.  Co.,  88  242,  59  L.  R.  A.  104;  Nashville, 
N.  C.  563,  43  Am.  749;  Exton  v.  etc.  R.  Co.  v.  Flake,  114  Tenn. 
Central,  etc.  R.  Co.,  63  N.  J.  L.  356,  671,  88  S.  W.  326. 
56  L.  R.  A.  508,  46  Atl.  1099;  Whether  duty  of  conductor  to 
Chicago,  etc.  R.  Co.  v.  Pillsbury,  disarm  drunken  passenger  who  Ts 
123  111.  9,  15  Am.  St.  Rep.  583.  firing  blank  cartridges  a  question 
Where  there  was  nothing  to  for  jury.  McWilliams  v.  Lake 
warn  the  R.  R.  company's  em-  Shore,  etc.  R.  Co.,  146  Mich.  210, 
ployees  of  the  possibility  of  an  109  N.  W.  272. 
assault  the  company  is  not  liable.  54  Rounds  v.  Del.  etc.  Ry.  Co., 
Felton  V.  Chicago,  etc.  R.  Co.,  69  64  N.  Y.  129. 


702  CARRIERS  OP  PASSENGERS.  [§  638. 

complained  of  was  done  in  the  course  of  his  employment.  The 
master  in  that  case  will  be  deemed  to  have  consented  to  and  au- 
thorized the  act  of  the  servant,  and  he  will  not  be  excused  from 
liability,  although  the  servant  abused  his  authority,  or  was  reck- 
less in  the  performance  of  his  duty,  or  inflicted  an  unnecessary 
injury  in  executing  his  master's  orders.  The  master  who  puts 
the  servant  in  a  place  of  trust  or  responsibility,  or  commits  to 
him  the  management  of  his  business  or  the  care  of  his  property, 
is  justly  held  responsible  when  the  servant,  through  lack  of  judg- 
ment or  discretion,  or  from  infirmity  of  temper,  or  under  the 
influence  of  passion  aroused  by  the  circumstances  and  the  occa- 
sion, goes  beyond  the  strict  line  of  his  duty  or  authority  and  in- 
flicts an  unjustifiable  injury  upon  another.  But  it  is  said  that 
the  master  is  not  responsible  for  the  wilful  act  of  the  servant. 
This  is  the  language  of  some  of  the  cases,  and  it  becomes  neces- 
sary to  ascertain  its  meaning  when  used  in  defining  the  master's 
responsibility.  ...  It  seems  to  be  clear  enough  from  the 
cases  in  this  state  that  the  act  of  the  servant  causing  actionable 
injury  to  a  third  person  does  not  subject  the  master  to  civil  re- 
sponsibility in  all  cases  where  it  appears  that  the  servant  was  at 
the  time  in  the  use  of  his  master's  property,  or  because  the  act, 
in  some  general  sense,  was  done  while  he  was  doing  his  master's 
business,  irrespective  of  the  real  nature  and  motive  of  the  trans- 
action. On  the  other  hand,  the  master  is  not  exempt  from  re- 
sponsibility in  all  cases  on  showing  that  the  servant,  without 
express  authority,  designed  to  do  the  act  or  the  injury  com- 
plained of.  If  he  is  authorized  to  use  force  against  another 
when  necessary  in  executing  his  master's  orders,  the  master  com- 
mits it  to  him  to  decide  what  degree  of  force  he  shall  use;  and 
if,  through  misjudgment  or  violence  of  temper,  he  goes  beyond 
the  necessity  of  the  occasion,  and  gives  a  right  of  action  to  an- 
other, he  cannot,  as  to  third  persons,  be  said  to  have  been  acting 
without  the  line  of  his  duty,  or  to  have  departed  from  his  mas- 
ter's business.  If,  however,  the  servant,  under  guise  and  cover 
of  executing  his  master's  orders,  and  exercising  the  authority 
conferred  upon  him,  wilfully  and  designedly,  for  the  purpose  of 
accomplishing  his  own  independent,  malicious  or  wicked  pur- 
poses, does  an  injury  to  another,  then  the  master  is  not  liable. 
The  relation  of  master  and  servant,  as  to  that  transaction,  does 
not  exist  between  them.     It  is  a  wilful  and  wanton  wrong  and 


§    638.]  PASSENGER  CARRIER'S  LIABILITY,  703 

trespass,  for  which  the  master  cannot  be  held  responsible.  And 
when  it  is  said  that  the  master  is  not  responsible  for  the  wilful 
wrong  of  the  servant,  the  language  is  to  be  understood  as  refer- 
ring to  an  act  of  positive  and  designed  injury,  not  done  with  a 
view  to  the  master's  service,  or  for  the  purpose  of  executing  his 
orders. ' ' 

So  an  express  company  was  held  liable  for  the  acts  of  its 
agents  for  cursing,  abusing  and  maltreating  the  plaintiff  imme- 
diately after  refunding  to  him  certain  overcharges  which  he  had 
come  to  the  office  to  obtain,  and  the  delivery  of  a  receipt  there- 
for. It  was  held  that  this  treatment  was  a  part  of  the  res  gestce, 
and  that  the  company  was  liable  for  the  tort.^^  ' '  The  law  is  well 
settled  that  it  is  the  duty  of  the  common  carrier  to  use  the  high- 
est degree  of  care  reasonably  practicable  in  exercising  police 
power  to  protect  its  passengers  from  insult  and  injury  by  fellow 
passengers. ' '  ^ 

In  St.  Louis  V.  Myer  ^^  it  was  held  that  it  is  the  first  and  high- 
est duty  of  the  conductor  of  a  railroad  train,  knowing,  or  having 
reason  to  believe,  that  a  passenger  is  a  dangerous  lunatic,  to  take 
proper  action  at  once  for  the  security  of  the  other  passengers 
against  his  violence,  and,  failing  to  discharge  such  duty,  to  com- 
municate to  the  other  passengers  the  facts  within  his  knowledge 
showing,  or  tending  to  show,  that  they  are  riding  in  a  car  with  a 
violently  insane  man  under  no  guard  or  restraint,  to  the  end  that 
they  may  themselves  take  suitable  precautions  for  safety.  It  has 
also  been  frequently  held  that  not  only  is  it  the  duty  of  the  car- 
rier to  protect  its  passengers  against  insane  persons,  but  also  to 

55  Richberger   v.    American    Ex.  Sup.  906.     A  carrier  who  permits 

Co.,  73  Miss.  161,  31  L.  R.  A.  390;  passengers   to   wait   in   its   depot 

Dwinnelle  v.  N.  Y.  Cent.  R.  Co.,  for   trains   is   liable   to   one   who, 

120  N.  Y.  117,  8  L.  R.  A.  224;  Wise  after  purchasing  a  ticket,  is  wait- 

V.  Covington,  etc.  Street  Car  Co.,  ing,   and   is   indecently   assaulted 

95    Ky.    537;    Conger,   etc.    v.    St.  by  its  station   agent.     Griflath   v. 

Paul,  etc.  R.   Co.,   45   Minn.   207;  Railway  Co.,  94  N.  W.  168. 
Baltimore  &  Ohio  Ry.  Co.  v.  Bar-  se  Lucy  v.  Chicago,  etc.  R.  Co., 

ger,   80  Md.  23,  26  L.  R.  A.  220;  64  Minn.  7,  31  L.  R.  A.  551;   Mul- 

Texas  &  P.  Ry.  Co.  v.  Williams,  len  v.  Wis.  Cent.  R.  Co.,  46  Minn. 

23  U.  S.  App.  379,  62  Fed.  440.    A  474". 

railroad  company  was  made  liable  57  lo  U.  S.  App.  677,  4  C.  C.  A. 

for  an  assault  made  upon  a  passen-  221,   54  Fed.   116;    St.  Louis,  etc. 

ger   by   its   conductor.     Luhrs    v.  R.  Co.  v.  Greenthal,  23  U.  S.  Ct. 

Brooklyn  Heights  R.  Co.,  42  N.  Y.  Ct.  Ap   100. 


704  CARRIERS  OF  PASSENGERS.  [§    639. 

protect  them  against  drunken  passengers,  or  those  persons  who 
are  liable  to  inflict  abuse  or  assaults  upon  them.  And  where  the 
carrier  has  failed  to  do  its  duty  in  this  respect,  knowing  the  situ- 
ation from  its  servants  or  agents,  they  have  been  held  liable  for 
damages  resulting  from  such  treatment.^®  But  where  a  person 
was  murdered  in  a  sleeping-car  by  some  intruder,  stranger,  or 
fellow  passenger,  it  was  held  that  the  carrier  was  not  liable  if  he 
did  not  know,  or  his  employees  did  not  know,  of  an  impending 
danger,  and  there  were  no  circumstances  to  arouse  their  suspi- 
cions.^® The  court  say :  ' '  Carriers  are  paid  to  preserve  watch  and 
ward  over  their  sleeping  guests,  and  they  are  rightfully  held  to 
a  due  and  faithful  discharge  of  the  obligations  thus  assumed." 
But  say  the  court:  "It  (the  carrier)  cannot  be  deemed  to  have 
anticipated  or  be  expected  to  guard  and  protect  its  passengers 
against  a  crime  so  horrid  and  happily  so  rare  as  that  of  murder. 
.  .  .  To  do  so  would  be  to  require  of  them  more  than  human 
foresight  as  to  the  minds  and  motives  of  men,  and  make  them, 
indeed,  insurers  of  the  safety  of  passengers  while  under  their 
care  against  all  dangers,  however  remotely  connected  with  their 
acts  of  omission  or  commission." 

In  this  connection  the  court  quote  from  Batton  v.  Railroad 
Co.,^'^  where  it  was  held  that  while  it  was  the  duty  of  a  railroad 
company  as  a  common  carrier  to  protect  its  passengers  against 
violence  or  disorderly  conduct  on  the  part  of  its  own  agents  or 
other  passengers  and  strangers  when  such  violence  or  miscon- 
duct may  be  reasonably  expected  and  prevented,  yet  it  is  not 
liable  to  an  action  for  damages  for  a  wrong  when  it  is  not  shown 
that  the  company  had  notice  of  any  facts  which  justified  the  ex- 
pectation that  a  wrong  would  be  committed;  and  the  court  say 
in  its  opinion,  "that  all  the  cases  upon  the  subject  impose  the 
qualification  that  the  wrong  or  injury  done  the  passenger  by 
such  strangers  must  have  been  of  such  a  character  and  perpe- 
trated under  such  circumstances  as  that  it  might  reasonably  have 
been  anticipated  or  naturally  expected  to  occur." 

§  639.  Fares — Tickets — Contracts  for  carriage. — The  con- 
tract, express  or  implied,  by  which  the  carrier  transports  the 

58  Rommel  v.   Schanbacher,  120  111.  Cent.  R.  Co.  v.  Minor,  69  Miss. 

Pa.   St.   579;    Richmond   &   Co.   v.  713,  16  L.  R.  A.  627. 

Jefferson,  89  Ga.  554,  17  L.  R.  A.  59  Ball    v.    Chesapeake    &    Ohio 

571;    Myer   v.    St.   Louis,   etc.   R.  Ry.  Co.,  93  Va.  44,  32  L.  R.  A.  792. 

Co.,  54  Fed.  116.     See  also  notes,  eo  77  Ala.  591,  54  Am.  Rep.   80. 


§    639.]  PASSENGER   CARRIER'S  LIABILITY.  705 

passenger  is  one  for  hire.  He  is  bound  to  carry  the  passenger 
who  presents  himself  for  carriage,  provided  he  is  a  proper  person 
and  entitled  to  become  a  passenger  and  pays  the  reasonable  price 
charged.  As  evidence  of  this  payment  the  carrier  may,  and 
generally  does,  issue  to  the  passenger  a  ticket  which  entitles  him 
to  transportation  between  the  points  named,  or  issues  to  him  a 
mileage  ticket  or  coupon  ticket  entitling  him  to  carriage  for  the 
number  of  miles  or  trips,  as  the  case  may  be.  A  ticket  like  a  bill 
of  lading  may  be  said  to  be  both  a  receipt  for  the  payment  of 
the  fare  and  at  the  same  time  a  contract  for  conveyance  of  the 
passenger  according  to  its  terms.®^  And  here  it  may  be  re- 
marked that  fair  and  honest  dealing  on  the  part  of  both  the 
carrier  and  the  passenger  is  demanded.  The  carrier  company 
will  be  held  to  a  strict  performance,  upon  its  part,  of  the  con- 
tract it  makes,  and  if  upon  its  tickets  it  uses  ambiguous  language 
as  to  any  conditions  or  agreements,  it  will  be  construed  favor- 
ably to  the  passenger  and  against  the  carrier.  The  payment  of 
fare  is  an  important  element  in  the  contract  for  carriage.  It  is 
the  consideration  which  induces  the  undertaking  upon  the  part 
of  the  carrier.  The  ticket  is  evidence  of  its  payment.  The 
amount  charged  must  be  reasonable,  and  is  generally  regulated 
by  statutes  in  the  different  states,  and  sometimes  fixed  in  the 
charters  that  are  issued  to  the  carrier  companies.  So,  the  car- 
rier cannot  charge  more  than  the  reasonable  amount  allowed  by 
the  statute  or  its  charter,  but  may  charge  a  less  amount  if  the 
charge  is  general  and  not  discriminated;  therefore  the  carrier 
often  writes  or  prints  into  his  ticket  conditions  and  agreements, 
basing  them  upon  the  consideration  that  the  ticket  is  sold  at  a 
reduced  rate  of  fare,  and  this  consideration  is  held  to  be  a  valua- 
ble consideration  and  sufficient  to  support  such  agreements,  ex- 
cept agreements  so  limiting  the  liability  of  the  carrier  as  to 

61  Special     stipulation     written  gently    Injuring    him.      Pittsburg, 

into    the    ticket    that    it    is    not  etc.  Co.  v.  Higgs,  165  Ind.  694,  70 

transferable    is    binding.       Schu-  N.  E.  299,  4  L.  R.  A.  (N.  S.)  1081; 

bach  V.   McDonald,   179   Mo.   163,  Crary   v.    Lehigh    Valley    R.    Co., 

65  L.  R.  A.   136.     See  notes  and  203   Pa.   525,   59  L.   R.  A.   815,  93 

brief  in  L.  R.  A.  cited.  Am.    St.   Rep.    778. 

But  carrying  a  passenger  at  a  Ticket  containing  no  limitation 

reduced   rate   does   not  entitle   a  as   to  time  may  be  used  at  any 

company   to   stipulate  for  an   ex-  time.     Freeman  v.  Atchison,  etc. 

emption   from   liability  for  negli-  R.  Co.,  71  Kan.  327,  80  Pac.  592. 

45 


706 


CARRIERS   OF  PASSENGERS. 


§  639. 


excuse  him  for  his  own  negligence.  And  so  it  has  been  held  that 
conditions  in  a  round-trip  excursion  railroad  ticket  stipulating 
that  it  shall  be  used  only  by  the  original  purchaser,  and  requir- 
ing him  to  identify  himself  as  such  at  the  point  of  destination 
before  beginning  the  return  passage,  is  not  unreasonable  or  in- 
valid.®^ And  where  a  railroad  ticket  was  sold  at  a  reduced  rate 
in  consideration  of  certain  conditions,  among  others,  that  it 
should  be  stamped  by  the  company's  joint  agent  at  the  place  of 
departure  before  it  would  be  accepted  for  the  return  passage, 
it  was  held  "the  condition  was  reasonable,  and  one  failing  to 
have  the  ticket  stamped  w^as  not  entitled  to  passage  thereon."^* 
The  court  say:  "The  theory  upon  which  unusual  terms  in 
excursion  tickets  are  upheld  is  that  (1)  they  are  sold  at  reduced 
rates  of  fare  and  not  at  the  usual  or  ordinary  rates.  (2)  They 
are  sold  for  special  occasions  and  not  for  ordinary  and  unlimited 
use.     (3)  By  accepting  such  ticket  when  he  has  the  option  to 


fi2  Dangerfield  v.  Atchison,  etc. 
R.  Ck).,  62  Kan,.  83,  61  Pac.  405. 

63  Watson  V.  Louisville,  etc.  R. 
Co.,  104  Tenn.  194,  49  L.  R.  A. 
454,  citing  Mosher  v.  Railway  Co., 
127  U.  S.  390;  Boylan  v.  Rail- 
way Co.,  132  U,.  S.  146;  Edwards 
V.  Railway  Co.,  81  Mich.  364.  In 
Edwards  v.  Railway  Co.,  a  round- 
trip  ticket  from  Lansing  to  Chi- 
cago was  sold  at  a  reduced  rate- 
Conditions  were  printed  upon  the 
back  of  the  ticket,  and  one  of 
the  conditions  was  that  the  ticket 
should  not  be  good  to  return  un- 
less the  passenger  identified  him- 
self to  the  ticket  agent  at  Chi- 
cago, and  produced  his  stamp 
upon  the  ticket  and  himself 
signed  it.  These  conditions  were 
signed  by  the  passenger;  he, 
however,  failed  to  identify  him- 
self to  the  ticket  agent  at  Chi- 
cago when  ready  to  return  and 
obtain  the  stamp  required,  but 
succeeded  in  boarding  the  train, 
but  not  by  the  usual  way  of  pass- 
ing the  gate-keeper.  His  ticket 
was  refused;    he  was  finally  put 


off  the  train  .and  afterwards 
brought  an  action  for  damages. 
Judge  Champlain  in  the  opinion 
said:  "Parties  capable  of  con- 
tracting may  enter  into  such 
agreements  as  they  choose,  and  if 
they  rest  upon  a  sufiicient  con- 
sideration, and  are  not  void  for 
illegality,  nor  as  being  against 
public  policy,  they  are  binding 
upon  them.  The  contract  of  car- 
riage in  this  case,  including  the 
conditions,  was  a  valid  and  bind- 
ing agreement.  The  conditions 
were  reasonable  and  rested  upon 
a  sufiicient  consideration,  namely, 
the  reduced  rate  of  fare."  In 
Eastman  v.  Maine  Cent.  Ry.  Co. 
70  N.  H.  240,  46  Atl.  54,  it  was 
held  that  "a  condition  on  which 
a  mileage  book  is  purchased  of  a 
carrier — that,  if  presented  by  an- 
other than  the  person  to  whom  it 
was  issued,  it  shall  be  forfeited — 
is  vaUd."  Louisville,  etc.  Co.  v. 
Wright,  47  N.  E.  491;  Acton  v. 
Castle  Mail-packet  Co.,  73  L.  T. 
158;  Thompson  v.  Trusdale,  61 
Minn    129. 


§    640.]  PASSENGER  CARRIER'S  LIABILITY  707 

purchase  the  usual  and  ordinary  ticket,  the  passenger  enters  into 
a  contract  with  the  carrier  different  from  that  implied  by  law 
upon  the  purchaser  of  an  ordinary  ticket  at  full  rates  of  fare. 
(4)  The  purchaser  is  bound  in  such  cases  by  the  terms  of  the 
contract.  He  is  entitled  to  its  advantages  of  reduced  fare,  and 
is  bound  by  reasonable  regulations  for  its  use.  .  .  .  It  is 
equally  for  the  benefit  of  the  carrier  and  the  public  that  the 
right  to  make  these  special  contracts,  when  reasonable,  should  be 
upheld  and  enforced.  Large  numbers  of  passengers  take  ad- 
vantage of  excursion  rates  who  would  otherwise  not  be  able  or 
willing  to  travel  at  all.  People  of  limited  means  most  generally 
avail  themselves  of  these  reduced  fares,  and  do  so  with  the  full 
expectation  that  they  will  be  subjected  to  requirements  and  in- 
conveniences that  they  would  not  meet  on  ordinary  occasions 
when  paying  full  fare.  On  the  other  hand,  carriers  reap  a  ben- 
efit from  them  in  increased  travel  with  increased  receipts  though 
not  the  usual  profits.  It  is  not  consistent  with  public  policy  to 
so  restrict  and  hamper  the  use  of  such  tickets  as  to  prevent  the 
running  of  excursions  and  the  granting  of  such  rates.  To  do  so 
would  be  to  deprive  persons  of  limited  means  of  the  opportuni- 
ties for  travel  which  they  desire." 

It  has  been  held,  however,  that  provisions  or  conditions  printed 
upon  the  face  of  a  passenger's  return-trip  ticket,  to  the  effect 
"that  it  will  not  be  valid  from  the  return  journey  unless  stamped 
by  the  agent  of  the  company  at  the  place  from  which  the  return 
journey  is  authorized,  forms  no  part  of  the  contract  between 
such  purchaser  as  a  passenger  and  such  company  as  a  carrier, 
and  does  not  qualify  the  usual  rights  and  obligations  of  either 
if  such  purchaser  does  not  assent  to  such  conditions  before  or  at 
the  time  he  purchases  such  ticket. ' '  ®* 

§  640.  Wliere  the  carrier  or  agent  is  at  fault. — Thus  far  we 
have  noticed  cases  where  the  passenger  was  at  fault  in  violating 
the  conditions  of  the  contract.  But  where  the  violation  of  the 
contract  is  attributable  to  the  fault  of  the  carrier  or  his  agent 
the  rule  is  very  different.  As  where  a  passenger  had  purchased 
a  round-trip  ticket,  and  on  it  was  the  condition  that  he  was  to 
present  it  to  the  agent  at  the  terminus  of  his  trip,  sign  the  ticket 
in  the  agent's  presence,  and  procure  it  to  be  stamped  by  the 

64  Lake   Shore   &   Mich.   S.   Ry.  Co.  v.  Mortal,  8  Ohio  Dec.  134. 


708  CARRIERS   OF  PASSENGERS  [§    640. 

agent  in  order  to  make  it  valid  for  use  on  his  return  trip,  and 
the  passenger  did  present  himself  at  the  ticket  office,  did  sign  his 
name  to  his  ticket  in  the  presence  of  the  agent,  and  gave  it  to 
the  agent,  who  took  it  to  the  rear  end  of  his  office,  and  after- 
wards returned  with  it  folded  and  handed  it  with  a  sleeping-car 
ticket  to  the  passenger,  but  after  the  passenger  had  proceeded 
for  a  distance  upon  his  return  trip  it  was  discovered  that  the 
ticket  was  not  stamped,  and  the  passenger  for  this  reason  was 
ejected  from  the  train,  it  was  held,  in  an  action  for  damages, 
that  the  company  was  liable.®^  The  court  say  in  discussing  this 
principle:  "It  has  been  held  that  it  is  a  reasonable  regulation 
upon  the  part  of  the  company  to  require  passengers  getting  upon 
its  railroad  train  without  a  ticket  to  pay  additional  fare;  but  in 
this  connection  the  court  declare  that  a  reasonable  opportunity 
must  be  given  to  the  passenger  to  enable  him  to  purchase  the 
ticket;  that  if  the  passenger  fails  to  purchase  a  ticket  solely  on 
account  of  the  premature  closing  of  the  ticket  office,  or  of  the 
failure  of  the  company  to  have  an  office  for  the  sale  of  tickets, 
he  cannot  be  required  to  pay  additional  fare,  and  if  expelled 
for  the  non-payment  of  the  additional  fare,  after  paying  or  of- 
fering to  pay  the  regular  fare,  he  is  entitled  to  recover  damages 
for  the  expulsion.^^  The  reason  given  is,  that  to  allow  a  railroad 
company  to  enforce  its  rule  for  additional  fare  under  such  cir- 
cumstances would  be  punishing  the  passenger  for  the  railroad 
company's  neglect  of  duty.  Unless  the  railroad  company  fur- 
nishes the  necessary  conveniences  or  facilities  for  procuring 
tickets,  the  passenger  cannot  be  considered  to  be  in  any  manner 
at  fault. 

The  authorities  have  not  been  entirely  harmonious  as  to  the 
liability  of  carriers  in  cases  where  the  passenger  has  been  ejected 
from  the  train  for  the  reason  that  he  did  not  hold  the  proper 
ticket  or  return  coupon,  which  was  the  occasion  of  the  mistake 
or  the  result  of  negligence  of  the  agent  or  servant  of  the  com- 
pany. As  where  the  agent  delivered  to  the  passenger  seeking  to 
purchase  a  ticket  by  a  particular  route,  a  ticket  for  some  other 

65  Northern    Pac.    Ry.    Co.    v.  Co.,     16     Oreg.     261;     State     v. 

Pauson,    70  Fed.  585,  30  L.  R.  A.  Hungerford,  39  Minn.  7;    Everett 

730.  V.  Chicago,  etc.  Co.,  69  Iowa,  15, 

CO  Pool    V,    Northern    Pac.    Ry.  5S  Am.  Rep.  207. 


§    640.]  PASSENGER  CARRIER'S  LIABILITY.  709 

or  different  route  which  when  presented  for  passage  was  refused 
by  the  conductor  of  the  train  with  a  demand  that  the  passenger 
pay  his  fare  and  upon  refusal  to  do  so  the  passenger  was  ejected 
from  the  train ;  or  when  the  passenger  held  a  return  ticket  made 
up  of  coupons  one  for  the  going  trip  and  the  other  for  the  re- 
turn, on  presenting  it  for  passage  on  the  going  trip  the  conductor 
took  up  the  wrong  coupon  leaving  with  the  passenger  the  coupon 
for  the  going  trip,  which  being  presented  for  return  passage  was 
refused;  or  where  the  passenger  being  entitled  to  a  stop  over 
ticket,  on  his  request,  by  mistake  or  negligence  of  the  conductor 
of  the  carrier's  train  is  furnished  with  transportation  that  is  in- 
valid by  the  rules  and  regulations  of  the  company  and  is  refused 
by  the  train  conductor  to  whom  he  presents  it  on  resuming  his 
journey. 

Some  of  the  authorities  in  considering  these  cases,  and  it  may 
be  said  to  be  quite  general,  distinguish  between  the  liability  of 
the  carrier  resulting  from  the  negligence  or  mistake  of  their 
agent  and  the  duty  of  the  conductor  to  obey  the  rules  and  regu- 
lations of  his  company.  That  is  to  say,  the  liability  of  the  car- 
rier may  in  some  instances  result  from  the  conductor  doing  his 
duty  as  well  as  in  other  cases  where  there  is  failure  to  do  his 
duty ;  and  so  it  does  not  always  follow  that  because  the  conductor 
has  done  his  duty  in  ejecting  a  passenger  the  company  is  not 
liable  on  its  contract  for  carriage. 

It  is  settled  by  the  great  weight  of  authority  that  the  face  of 
the  ticket  is  conclusive  evidence  to  the  conductor  of  the  terms 
of  the  contract  of  carriage  between  the  passenger  and  the  com- 
pany. ^'^  The  reason  for  this,  as  is  said  in  Paulin  v.  Canadian 
Pacific,^^  is  found  in  the  impossibility  of  operating  railways  on 
any  other  principle,  with  a  due  regard  to  the  convenience  and 
safety  of  the  rest  of  the  traveling  public,  or  the  proper  security 
of  the  company  in  collecting  its  fares.  The  conductor  cannot 
decide  from  the  statement  of  the  passenger  what  his  verbal  con- 
tract with  the  ticket  agent  was,  in  the  absence  of  the  counter 


67 Western  Maryland  R.   Co.   v.  K.    Co.,    48    Mo.    App.    125;    New 

Stockdale,  83  Md.  245 ;  34  Atl.  880;  York,  etc.  R.   Co.   v.   Bennett,   50 

Frederick    v.    Marquette,    eta    R.  Fed.  49a  1.  C.  C.  A.  544. 
Co.,    37    Mich.    342,    26    Am.    Rep.  68  52  Fed.  197,  3  C.  C.  A.  23,  17 

531;   Woods  v.  Metropolitan,  etc.  L   R.  A.  800. 


710  CARRIERS  OF  PASSENGERS.  [§  640. 

evidence  of  the  agent.  To  do  so  would  take  more  time  than  a 
conductor  can  spare  in  the  proper  and  safe  discharge  of  his 
manifold  and  important  duties  and  it  would  render  the  com- 
pany constantly  subject  to  fraud  and  consequent  loss.  The  pas- 
senger must  submit  to  the  inconvenience  of  either  paying  his 
fare  or  the  ejection,  and  rely  upon  his  remedy  in  damages 
against  the  company  for  the  negligent  mistake  of  the  ticket 
agent.  There  is  some  conflict  among  the  authorities,  but  the 
great  weight  of  them  is  in  favor  of  the  result  here  stated.^® 

It  is  the  duty  of  the  passenger  to  exercise  ordinary  diligence 
and  if  by  doing  so  he  can  discover  the  mistake  of  the  agent  or 
conductor,  furnishing  the  proper  evidence  of  his  right  to  trans- 
portation, and  can  correct  the  error  but  fails  to  do  so,  then 
if  on  presentation  of  his  ticket  or  evidence  of  his  right  to  trans- 
portation it  is  refused  and  he  is  ejected  from  the  train  he  can- 
not recover  as  the  ejection  is  not  the  approximate  cause  of  the 
mistake  or  wrongful  act  of  the  agent  or  conductor  furnishing  the 
ticket  or  negligently  making  the  mistake. '^'^  And  in  such  case  it 
has  been  said  it  matters  not  whether  the  action  sounds  in  tort  or 
in  contract.  If  in  tort,  then  the  rule  is  that  he  cannot  recover 
any  damages  for  an  injury  growing  out  of  the  negligence  of  the 
defendant  carrier  and  which  by  the  use  of  due  care  he  might 
have  avoided.  If  in  contract,  then  it  was  his  duty  to  use  due  dili- 
gence to  reduce  the  damages  for  the  breach.  A  failure  to  do  so 
would  prevent  recovery  for  any  damages  which  might  by  the  ex- 
ercise of  such  diligence  have  been  avoided.  So  if  by  due  dili- 
gence  the  mistake  was  discovered  but  too  late  to  be  rectified  then 

"■9  Bradshaw    v.    South    Boston-  57;  Pennington  v.  Philadelphia  W. 

R.    Co.,    135    Mass.    407,    46    Am.  <fe  B.  R.  Co.,  62  Md.  95;   Johnson 

Rep.  481;    Towsend  v.  New  York  v.   Philadelphia  W.   &   B.   R.    Co., 

Cent.    &   H.   R.   R.   Co.,   56   N.   Y.  63    Md.    106.      Mahony    v.    Detroit 

295,   15  Am.  Rep,   419;    Frederick  St.  R.  Co.,  93  Mich.  612,  53  N.  W. 

V.  Marquette,  H.  &  O.  R.  Co.,  37  793,  32  Am.  St.  Rep.  528,  18  L.  R. 

Mich.     342,     26     Am.     Rep.     531;  A.  335;  Virginia,  etc.  R.  Co.  v.  Hill, 

Shelton  v.  Lake  Shore  &  M.  S.  R.  105  Va.  729,  6  L.  R.  A.  (N.  S.)  899; 

Co.,  29  Ohio  St.  214;    Dietrich  v.  Yorton  v.  Milwaukee,  etc.  R.  Co., 

Pennsylvania  R.   Co.,   71   Pa.   432,  54    Wis.    234,    11    N.    W.    482,    41 

10     Am.     Rep.     711;      Petrie     v.  Am.  Rep.  23;    McKay  v.  Ohio  R. 

Pennsylvania  R.   Co.,  42  N.  J.  L.  Co,  34  W.  Va.  65,  9  L.  R.  A.  132 

449;    Chicago   B.    &   Q.   R.   Co-    v.  and  note. 

Griffin,  68  111.  499;    Hall  v.  Mem-  to  Wiggins  v.  King,  91  Hun  (N. 

phis    &    C.   R.    Co.,    15   Fed.    Rep.  Y.)    340,  36  N.  Y.  Sup.  768. 


§  640.] 


PASSENGER   CARRIER  S   LIABILITY. 


711 


the  passenger  must  do  whatever  he  can  reasonably  do  to  min- 
imize the  damages  that  might  result  from  it,  which  would  gen- 
erally be  the  amount  of  fare  he  was  required  to  pay  to  avoid 
being  ejected  from  the  train.^^ 


71  Brown  v.  Rapid  Ry.,  130 
Mich.  483;  Hufford  v.  G.  R.  &  I. 
Ry  Co.,  53  Mich.  118-121  and  the 
Michigan  case  collected  and  cited 
in  a  note  to  the  opinion. 

In  Van  Dusan  v.  Railroad  Co., 
97  Mich.  439-441  the  court  say: 
"The  plaintiff  on  discovering  that 
the  ticket  which  he  had  re- 
ceived from  the  company's  agent 
had  been  wrongfully  taken  up 
by  the  first  conductor  without 
furnishing  him  the  requisite  evi- 
dence to  his  right  to  ride  from 
Port  Huron  to  Trenton,  had  no 
right  to  insist  upon  riding  upon 
the  Trenton  train  without  pro- 
ducing any  evidence  of  his  right. 
To  hold  otherwise  would  be  to  in- 
cite unseemly  contests.  The  rule 
requiring  the  production  of  a 
ticket  as  evidence  of  the  right  to 
ride  is  reasonable,  and  is  one 
with  which  it  must  be  assumed 
the  traveling  public  is  familiar. 
In  the  present  case  the  failure 
of  the  former  conductor  to  fur- 
nish plaintiff  a  check  was  evi- 
dently a  mistake,  and  the 
plaintiff,  without  discovering  the 
mistake,  had  taken  his  seat  in 
the  train  from  Port  Huron  to 
Trenton,  he  at  the  time  not  pos- 
sessing any  evidence  of  his  right 
to  ride.  Upon  discovering  this 
mistake,  his  remedy  was  not  by 
insisting  upon  a  further  breach 
of  duty  or  the  rules  of  the  com- 
pany by  the  conductor  in  charge 
of  the  Trenton  train.  On  the 
contrary,  it  was  his  duty  to  leave 
the  train  peaceably  or  pay  his 
fare,  and  to  seek  his  remedy  for 


damages  resulting  from  either 
necessity  as  the  situation  of  the 
time  required." 

In  N.  Y.  L.  E.  &  W.  R.  Co.  v. 
Winter.  143  U.  S.  60,  where  a 
passenger  attempted  to  ride  on  a 
stop  over  privilege,  having  an  un- 
limited ticket  which  was  punched 
by  the  first  conductor  but  which 
did  not  invalidate  it,  and  was 
forcibly  ejected  from  the  train, 
the  company  was  held  liable,  the 
court  observing:  "The  reason  of 
such  rule  is  to  be  found  in  the 
principle  that  when  a  party  does 
all  that  he  is  required  to  do 
under  the  terms  of  a  contract 
upon  which  he  has  entered  and, 
is  only  prevented  from  reaping 
the  benefit  of  such  contract  by 
the  fault  or  wrongful  act  of  the 
other  party  to  it,  the  law  gives 
him  a  remedy  against  the  other 
party  for  such  breach  of  con- 
tract. 

In  Northern  Pacific  v.  Pauson, 
70  Fed.  585,  30  L.  R.  A.  730,  it 
was  held  that  the  failure  of  the 
carrier's  agent  to  stamp  the  re- 
turn coupon  of  a  round  trip 
ticket  in  order  to  make  it  valid 
for  use  under  the  carrier's  regu- 
lations, will  not  justify  the  ex- 
pulsion from  a  train  of  the  pass- 
enger who  presented  himself  to 
the  agent  and  signed  the  ticket 
in  the  agent's  presence  and  de- 
livered it  to  and  received  it  from 
the  agent  under  such  circum- 
stances as  to  justify  the  belief 
that  the  ticket  had  been  stamped. 
And  in  Scofield  v.  Pennsylvania 
Co.,  50  C.  C.  A.  553,  112  Fed    855. 


712 


CAKRIERS   OF  PASSENGERS. 


[§  641. 


§  641, 


Exhibition  and  surrender  of  tickets. — There  are 


certain  regulations  not  binding  merely  because  they  are  a  part  of 
the  contract,  but  made  effective  and  of  force  because  they  are 
considered  to  be  reasonable,  just  and  necessary  in  order  to  carry 
out  the  obligations  of  the  carrier  company  to  the  public.  Among 


56  L.  R.  A.  224  it  was  held  that 
the  non-possessioa  of  a  ticket 
does  not  of  itself  authorize  the 
ejection  from  a  train  of  a  pas- 
senger who  having  a  contract  for 
stop  over  privileges  exercises 
them  after  his  ticket  has  been 
taken  up  against  his  protest  and 
demands  to  complete  his  journey 
without  procuring  another  ticket, 
the  courts  say:  "The  company 
could  not  absolve  itself  from  the 
obligation  of  its  contract  by 
wrongfully  seizing  and  withhold- 
ing the  evidence  of  it.  There 
are  authorities  which  hold  that  a 
passenger  may  not  enter  a  train 
for  carriage  without  a  ticket  pur- 
porting to  give  him  the  right  to 
be  carried  and  refuses  to  pay  the 
fare  relying  upon  some  agree-* 
ment  resting  in  evidence  which 
the  conductor  cannot  consider. 
This  holding  rests  upon  the  im- 
practicability of  the  conductor's 
deciding  such  questions  from 
the  lack  of  time  to  tend  to  such 
duty  and  the  lack  of  opportunity 
to  hear  the  other  party.  All  cases 
referred  to,  therefore,  hold  that  in 
such  a  situation  the  passenger 
should  pay  his  fare  and  settle  the 
question  of  his  right  with  the 
company. 

And  it  has  been  held  that  if  the 
conductor  by  mistake  fails  to 
collect  the  full  amount  of  the 
fare,  he  may  afterwards  demand 
more  and  upon  the  refusal  to  pay 
for  transportation  beyond  that  al- 
ready paid  for,  he  may  eject  the 
passenger.     Curties  v.  Louisville, 


etc.  R.  Co.,  94  Ky.  573,  23  S.  W. 
363,  21  L«.  R.  A.  649;  Wardell  v, 
Chicago,  etc.  R.  Co.,  46  Minn. 
514,  13  L.  R.  A.  596,  49  N.  W.  206; 
McCarthy  v.  Chicago,  etc.  R.  Co. 
41  la.  432. 

And  if  a  passenger  by  his  own 
mistake  without  the  act  of  the 
carrier  takes  the  wrong  train  he 
is  not  entitled  to  transportation 
to  the  next  stopping  place  and  if 
he  refuses  to  pay,  may  be  ejected. 
New  York,  etc.  R.  Co.  v.  Feely, 
163  Mass.  205,  40  N.  E.  20;  Col- 
umbus, etc.  R.  Co.  v.  Powell,  40 
Ind.  37. 

And  it  has  been  held  the 
wrongful  expulsion  of  a  passenger 
who  had  no  ticket  because  it  had 
been  taken  up  by  another  con- 
ductor renders  the  carrier  liable. 
Sloane  v.  So.  Cal.,  etc.  R.  Co.,  Ill 
Cal.  668,  44  Pac.  320,  32  L.  R.  A. 
193.  If  a  carrier  uses  more  force 
than  necessary,  he  is  liable  in  tort. 
Virginia,  etc.  R.  Co.  v.  Hill,  105 
Va.  729.  "Where  one  with  full 
knowledge  of  circumstances  con- 
tracts with  conductor  on  a  special 
train  made  up  to  go  to  and  re- 
turn from  a  wreck  and  pays  fare 
going,  he  has  no  right  of  action 
against  the  company  for  refusal 
of  transportation  to  return.  Du- 
Bose  v.  Louisville,  etc.  R.  Co.,  121 
Ga.  308,  48  S.  E.  913. 

Statement  of  railroad  agent 
that  conductor  would  allow  trans- 
portation, etc.  Texas,  etc.  R.  Co. 
V.  Smith  (Tex.  Civ.  App.  1905),  84 
S.  W.  852. 

Failure  of  company  to  give  re- 


§    642.]  PASSENGER  CARRIER'S  LIABILITY.  713 

these  may  be  mentioned  the  requirement  that  passengers  will 
not  be  permitted  to  board  the  trains  or  boats  or  vehicles  until 
they  have  passed  through  the  gate  separating  the  vehicles  from 
the  public  waiting-rooms  and  had  their  tickets  punched  by  the 
gate-keeper.  This  is  a  necessary  and  important  regulation,  es- 
pecially at  large  city  stations  where  trains  are  made  up  and 
numerous  passengers  are  admitted  for  carriage,  or  where  great 
steamboats  are  loaded  with  passengers.  It  necessarily  facilitates 
the  work  that  must  be  done,  and  in  most  cases,  it  may  be  said, 
makes  it  possible  for  the  carrier  to  perform  more  efficient  and 
better  service.  The  carrier  may  enforce  such  a  regulation  and 
prevent  its  violation.'^-  The  regulation,  too,  that  a  passenger  is 
bound  to  show  his  ticket  to  the  person  who  is  in  charge  of  the 
vehicle,  is  held  to  be  a  reasonable  one. 

§  642.  Lost  or  mislaid  tickets. — As  we  have  seen,  the 

regulation  that  a  passenger  must  produce  and  show  his  ticket 
when  called  for  is  not  only  reasonable,  but  it  is  without  doubt  a 
necessary  regulation  in  order  to  facilitate  the  business  and  make 
it  possible  for  the  carrier  to  transport  the  passenger.  And  where 
a  passenger  has  lost  or  mislaid  his  ticket,  and  cannot  produce  it 
when  called  upon,  after  having  been  given  a  reasonable  time  to 
find  it  and  produce  it,  he  may  be  required  to  pay  his  fare  or  be 
expelled  from  the  train  or  the  vehicle.  While  this  regulation 
may  in  some  instances  work  a  great  hardship,  it  is  evident  that 
as  a  general  rule  it  is  necessary,  otherwise  it  would  open  the 
door  for  fraud  or  deception,  and  the  carrier  would  necessarily 
suffer  for  want  of  it.  And  so  it  has  been  held  that  a  rule  re- 
quiring the  conductor  to  eject  from  the  train  a  passenger  who 
refuses  to  produce  a  ticket  or  pay  his  fare  on  demand  is  a  rea- 
sonable one,  and  the  purchaser  of  a  non-transferable  commuta- 
tion ticket,  who  has  lost  it,  and  refuses  on  account  of  such  loss 
to  pay  his  fare  upon  the  train,  falls  within  the  rule,  and  cannot 

turn  transportation  on  account  of  he  was  entitled  to  recover  for  his 

strike.     Elliott  v.   Southern  Pac,  expulsion,  that  it  was  not  incum- 

441,  79  Pac.  420.  bent  on  him  to  purchase  a  ticket 

Where      the      carrier's      agent  or  pay  his  fare.     Texas   Pac.  R. 

wrongfully  refused  to  indorse  a  Co.  v.  Payne  (Tex.)  87  S.  W.  330- 
return  trip  ticket  and  the  passen-  72  Dickerman    v.    Union    Depot 

ger   in   consequence   was   ejected  Co.,  44  MLnn.  4331, 
from  the  train,  it  was  held,  that 


714  CARRIERS  OP  PASSENGERS.  [§    643. 

maintain  an  action  of  tort  against  the  company  to  recover  dam- 
ages for  being  ejected  by  the  conductor  for  non-compliance  with 
it.^^ 

§  643.  Stop-over  tickets — Time  limit — Train  limit,  etc. 

The  presumption  is,  that  when  a  passenger  purchases  a  ticket  he 
will  use  it  at  once,  or  within  a  reasonable  time,  and  make  a  con- 
tinuous journey;  and  so  it  has  been  held  that  it  is  a  reasonabla 
regulation  that  a  passenger,  if  he  would  stop  over  between  the 
points  for  which  he  is  ticketed,  must,  if  his  ticket  is  limited,  sur- 
render it  and  obtain  a  stop-over  check  or  ticket ;  that  the  carrier 
may  limit  the  time  the  ticket  will  be  good,  and  the  train  or  class 
of  trains  upon  which  it  will  be  taken.  Where  a  passenger  boards 
a  train  upon  a  ticket  which  he  knows  does  not,  upon  its  face, 
entitle  him  to  passage  because  the  time  for  which  it  purports  to 
be  valid  has  expired,  even  though  he  thinks  the  limitation  un- 
reasonable, and  is  ejected  from  the  train  for  refusing  to  pay 
fare,  he  cannot  in  an  action  recover  damages,  nor  is  he  entitled  to 
have  the  price  refunded.  In  such  a  case  the  court  say:  "By 
not  using  the  ticket  within  the  time  fixed  by  it,  his  rights  under 
the  ticket  were  at  an  end,  and,  before  he  could  rightfully  claim 
a  passage,  he  must  obtain  a  ticket  entitling  him  to  one.  For 
that  purpose  he  should  apply  to  the  agent  of  the  company  au- 
thorized to  issue  tickets,  and  there  urge  his  claim,  if  such  he  had, 
to  a  ticket,  because  of  his  former  payment,  and  not  attempt  its 
adjustment  with  the  conductor,  whose  duty  it  was  to  take  up  and 
cancel,  and  not  to  issue,  tickets.  Had  he  not  presented  the  ticket, 
but  claimed  a  passage  because,  more  than  a  year  before,  he  had 
purchased  one,  and  had  not  used  it,  we  assume  no  one  would 
contend  that  he  was  entitled  to  a  passage,  and  why?  Because 
public  policy,  as  well  as  public  sentiment,  would  condemn  a  rule 
so  palpably  unreasonable."  ^*     If  because  of  the  fault  of  the  car- 

~3  Crawford  v.  Railway   Co.,   26  train,  see  Maples  v.  Railway  Co., 

Ohio    St.    580;    Hibbard    v.    Rail-  38  Conn.  557. 

way  Co.,  15  N.  Y.  455;   Cooper  v.  74  Trezona  v.   Railway  Co.,   107 

Railway   Co.,  L.  R.   4  Exch.   Div.  Iowa,  22,  43  L.  R.  A.  136;    Brad- 

88.     As  to  the  passenger  having  shaw  v.   Railway   Co.,   135   Mass. 

reasonable  time  to  find  his  ticket  407,  46  Am.  Rep.  481;    McKay  v. 

before    being    ejected    from    the  Railway  Co.,  34  W.  Va.  65,  9  L.  R. 

A.  132. 


§  644.] 


PASSENGER   CARRIER'S  LIABILITY. 


715 


rier  the  passenger  cannot  comply  with  the  conditions,  he  will  not 
forfeit  his  ticket.  ^^ 

§  644.  Tickets  over  connecting  lines. — These  tickets  are  usu- 
ally issued  with  coupons  attached  for  each  connecting  road  or 
carrier,  and  unless  by  contract  it  appears  otherwise  it  will  be 
held  that  the  initial  carrier  in  the  sale  of  such  a  ticket  is  acting 
as  the  agent  of  the  connecting  carrier. 

But  it  cannot  be  said  that  there  is  entire  harmony  among  the 
courts  of  the  several  states  as  to  the  liability  for  loss  or  injury 
to  the  passenger,  riding  on  such  ticket,  suffered  upon  the  line 
of  the  connecting  carriers  by  reason  of  their  fault  or  negligence. 
There  is  a  line  of  cases  holding  the  rule  to  be  as  expressed  by  the 
court  in  the  case  of  Pennsylvania  Company  v.  Loftis."^^  "As  to  a 


75  In  Drew  v.  Cent.  Pacific  Ry. 
Co.,  51  Cal.  425,  it  was  held  that 
"if  a  passenger  who  has  pur- 
chased a  ticket  from  a  railroad 
company,  which  is  silent  on  the 
subject  of  his  stopping  over,  stops 
over  before  he  reaches  the  point 
to  which  the  ticket  entitled  him 
to  ride,  he  cannot  resume  his 
journey  on  the  ticket;  that  if  the 
passenger  leaves  the  train  be- 
fore he  has  arrived  at  the  point 
to  which  his  ticket  entitled  him 
to  ride,  he  voluntarily  terminates 
his  contract  with  the  company  to 
carry  him  to  such  point."  Citing 
Deitrich  v.  Railway  Co.,  71  Pa. 
St.  482;  McClure  v.  Railway  Co., 
34  Md.  532;  Hatton  v.  Railway 
Co.,  39  Ohio  St.  379;  Churchill  v. 
Railway  Co.,  67  111.  390.  In  Hill 
V.  Railway  Co.,  63  N.  Y.  101,  it 
was  held  that  "where  a  railroad 
passenger  ticket  by  its  terms 
limits  the  time  within  which  it  is 
to  be  used,  it  does  not  exonerate 
the  holder  from  the  payment  of 
fare  if  he  takes  passage  on  the 
road  after  the  expiration  of  the 
time;  and  in  case  of  his  refusal 
to  pay,  the  conductor  has  a  right 


to  eject  him  from  the  train.*' 
Wilsey  v.  Railway  Co.,  83  Ky. 
511;  Elmore  v.  Sands,  54  N.  Y. 
512,  held  that  "a  railroad  com- 
pany has  a  right  to  provide  and 
insist  that  its  passenger  tickets 
shall  be  used  upon  the  day  when 
issued;  also,  that  every  passen- 
ger, when  entering  a  train,  shall 
pay  his  fare  or  produce  a  ticket 
showing  his  right  to  ride  upon 
that  train;  and  in  enforcing  such 
regulations,  neither  it  nor  its  em- 
ployees are  liable." 

76  72  Ohio  State,  288.  Penn- 
sylvania R.  Co.  V.  Jones,  155  U. 
S.  333;  Chicago,  etc.  R.  Co.  v. 
Mulford,  162  111.  522;  Penn.  R. 
Co.  V.  Connell,  112  111.  295;  Kan- 
sas City  R.  Co.  V.  Foster,  134  Ala. 
244;  Young  v.  Penn.  R.  Co.,  115 
Pa.  St.  112;  Hartan  v.  Eastern 
Ry.  Co.,  114  Mass.  44;  Chollette 
v.  Omaha,  etc.  R.  Co.,  26  Neb.  159, 
41  N.  W.  1106,  4  L.  R.  A.  135.  A 
company  contracting  to  carry  an 
excursion  party  by  special  train 
to  a  point  beyond  its  own  line  is 
liable.  Washington  v.  Raleigh, 
etc.  R.  Co.,  101  N.  C.  239,  7  S.  E. 
789.  And  where  defendant,  an  ini- 


716  CARRIERS  OF  PASSENGERS.  [§    644. 

common  carrier  of  passengers,  as  distinguished  from  a  carrier 
of  goods  or  baggage,  the  doctrine  would  seem  now  to  be  gener- 
ally well  settled  that  the  mere  issuance  and  sale  by  the  former 
of  a  coupon  ticket  good  over  its  own  and  connecting  lines  does 
not  of  itself  import  an  undertaking  or  agreement  on  the  part  of 
the  issuing  or  selling  company  to  become  responsible  for  the  safe 
carriage  of  the  passenger  to  whom  such  ticket  is  sold  beyond  its 
own  line.  Yet  it  is  equally  true,  and  not  less  well  settled,  we 
think,  that  a  railroad  company  selling  a  ticket  for  the  transporta- 
tion of  a  passenger  beyond  its  own  line  of  road,  may  by  contract 
either  express  or  implied  make  itself  responsible  for  the  safe  car- 
riage of  such  passenger  over  the  entire  route  covered  by  the  ticket 
sold." 

On  the  other  hand  some  of  the  courts  hold  that  the  initial  car- 
rier is  liable  to  the  passenger  to  whom  it  furnished  such  a  ticket 
for  the  loss  or  injury  suffered  on  account  of  the  fault  or  negli- 
gence of  the  connecting  carrier  in  the  absence  of  an  agreement 
limiting  its  liability  to  its  own  line.''''  But  this  cannot  be  said  to 
be  the  weight  of  authority — ^nor  is  it  very  generally  held. 

It  would  seem  that  there  is  no  rule  fixing  liability  upon  the 
selling  or  initial  carrier  in  this  class  of  cases  outside  of  a  con- 
tract expressed  or  implied  and  that  the  mere  selling  of  the  ticket 
would  not  import  such  a  contract  or  obligation.  The  carrier  sell- 
ing the  ticket  can  without  doubt  limit  its  liability  to  its  own 

tial  carrier,  sold  a  ticket  over  its  Combs,  70  Ga.  533;  Georgia,  etc. 
own  and  connecting  carrier's  lines,  R.  v.  Pearson,  120  Ga.  284;  Mat- 
stating  in  the  ticket  that  it  acted  hows  v.  Atchison,  etc.  R.  Co.,  60 
as  the  agent  of  the  connecting  car-  Kan.  11. 

riers,  it  being  required  that  the  78  Mosher  v,   St.   Louis,   etc.  R. 

ticket  should  be  stamped  by  the  Co.,  127  XJ.  S.  390;   Penn.  etc.  R. 

connecting  carrier  in  the  presence  Co.  v.  Connell,  112  111.  295;  Karri- 

of  the  passenger  to  render  it  good  gan  v.   Southern  Pac.   R.   Co.,   81 

returning,   it   was   held   that   the  Cal.  248. 

connecting    carrier    was    not    the  In  McWethy  v.  Detroit,  etc.  R. 

agent    of    defendant    Initial    car-  Co.,    127   Mich.   333,    it   was   held 

rier  so  as  to  render  it  liable  for  that   the   passenger   was    charge- 

the    mistakes    in    punching    the  able  with  notice  of  the  conditions 

ticket  to  render  it  good  returning.  printed   on  her  ticket  to  the  ef- 

Boling  v.   St.   Louis,  etc.  R.   Co.,  feet  that  defendant  acted  merely 

189  Mo.  219,  88  S,  W.  35.  as  agent  in  selling  it,  and  was  not 

■fT  Gulf,  etc.  R.  Co.  V.  Looney,  responsible  beyond  its  own  line. 
85    Tex.    158;    Central   R.    Co.    v. 


§    644.]  PASSENGER   CARRIER'S  LIABILITY.  717 

line,  and  such  a  limitation  lias  generally  been  held  valid  ;^^  and 
as  well  can  it  extend  its  liability  and  become  liable  for  the  fault 
and  negligence  of  the  connecting  carrier.'''^ 

Where  the  loss  or  injury  sustained  by  the  passenger  while  on 
the  connecting  line  was  occasioned  by  the  fault  or  negligence  of 
the  initial  carrier,  as  where  it  delivered  to  the  passenger  the 
wrong  ticket,  taking  off  the  wrong  coupon,  or  misrepresenting 
the  facts  when  selling  the  ticket,  the  initial  carrier  is  no  doubt 
liable  for  the  resulting  damages,^^  and  it  is  generally  held  that 
when  the  resulting  damage  is  because  of  the  fault  or  negligence 
of  both  carriers,  the  initial  carrier  and  the  connecting  carrier,  the 
injured  passenger  may  recover  from  either  or  from  both  jointly, 
on  the  principle  which  obtains  in  this  class  of  cases  as  well  as  in 
actions  for  tort  generally,  that  where  more  than  one  is  guilty  of 
the  negligent  act  which  results  in  the  injury,  the  injured  party 
may  proceed  against  them  jointly  or  severally.^'^ 

It  is  not  contemplated,  nor  does  the  law  require,  unless  it  be 
so  stipulated  in  the  ticket,  that  the  passage  shall  be  continuous, 
but  the  holder  of  such  a  ticket  may  stop  over  at  the  terminus  of 
each  line  as  long  as  he  pleases,  provided  he  commences  his  jour- 
ney over  the  last  connecting  line  within  the  life  of  the  ticket. 
And  so  it  has  been  held  that  it  is  only  required  that  the  holder 
of  such  a  ticket  present  himself  upon  the  vehicle  of  the  last  con- 
necting carrier  and  take  passage  at  a  time  within  that  limited 
by  the  terms  of  the  contract,  and  that  it  is  not  necessary  that 
he  should  complete  the  journey  within  such  time.^^ 

79  The  contract  may  be  proven  si  Richard  v.  Detroit,  etc.  R. 
by  parol,  it  being  held  that  the  Co.,  129  Mich.  458,  464;  Roddy  v. 
ticket  is  not  such  a  contract  that  Railway  Co.,  104  Mo.  234,  15  S. 
its  terms  cannot  be  contradicted,  W.  1112,  12  L.  R.  A.  746;  Patter- 
that  it  is  rather  evidence  of  a  son  v.  Railway  Co.,  54  Mich.  91, 
contract.  Bussman  v.  Western  19  N.  W.  761;  Missouri,  etc.  R. 
Transit  Co.,  71  Fed.  654;   Buffett  Co.  v.  Foster,  97  Tex.  618. 

v.  Troy,  etc.  R.  Co.,  40  N.  Y.  168.  82  Lundy  v.  Cent.  Pac.  Ry.  Co., 

The  contract  must  be  clearly  ex-  66    Cal.    191,    56    Am.    Rep.    100; 

pressed.     Penn.  R.   Co.  v.   Jones,  Evans    v.    Railway    Co.,    11    Mo. 

155  U).  S.  333.  App.    463;     Aurbach    v.    Railway 

80  Louisville,  etc.  R.  Co.  v.  Con-  Co.,  89  N.  Y.  281,  42  Am.  Rep. 
rad,  4  Ind.  App.  83;  Head  v.  290,  and  see  cases  in  note  16  L. 
Georgia,  etc.  R.  Co.,  79  Ga.   358;  R.  A.  471. 

Griffin    v.    Utica,   etc.   R.   Co.,    41 
Hun  (N.  Y.)  448. 


718  CARRIERS  OF  PASSENGERS.  [§  646. 

§  645,  Delayed  by  wreck  or  by  the  fault  of  the  carrier. 

But  it  has  been  held  that  "a  ticket  over  connecting  roads  lim- 
ited as  to  the  time,  but  which  is  a  joint  contract  of  the  carriers, 
entitles  a  passenger  who  is  delayed  by  a  wreck  on  one  of  the 
roads  to  complete  his  journey  although  the  time  expires  before 
he  reaches  the  last  of  the  connecting  roads. ' '  ^^ 

§  646.  Tickets,  passes  and  other  transportation  fraudulently 
obtained  or  fraudulently  used. — The  maxim  of  the  law,  old  as 
the  law  of  contracts,  that  "fraud  vitiates  all  contracts,"  applies 
to  the  contracts  or  obligations  to  carry  passengers  as  effectively 
as  to  any  other  contract.  The  passenger  who  presents  a  ticket, 
pass,  or  transportation  for  his  passage  may  be  generally  said  to 
be  entitled  to  be  conveyed  to  the  station  or  place  mentioned 
therein;  but  if  the  ticket  or  transportation  has  been  obtained 
by  fraud,  either  by  himself  or  some  other  person,  the  carrier  may 
refuse  to  honor  it,  and  may  take  it  up  and  demand  payment  of 
fare.  In  Frank  v.  Ingalls,^*  the  court  say :  "  It  thus  seems  to  be 
well  established  that  a  railroad  ticket  is  a  receipt  or  voucher;  it 
has  more  the  characteristics  of  personal  property  than  that  of  a 
negotiable  instrument.  When  the  possession  of  such  a  ticket  has 
been  obtained  by  fraud,  the  company  has  parted  with  the  posses- 
sion of  it  but  not  the  title  to  it,  and  the  person  purchasing  from 
the  holder,  although  for  value  and  without  notice  of  equities, 
takes  no  better  title  than  the  party  had  who  fraudulently  ob- 
tained possession  of  it."  And  where  a  ticket  was  obtained  by 
false  and  fraudulent  representations,  it  was  held  that  "the  car- 
rier would  be  justified  in  taking  it  up  and  canceling  it."  ^^  One 
who  conceals  himself  upon  the  vehicle  and  undertakes  to  beat 
his  way  is  not  entitled  to  passage ;  for  whoever  in  any  way,  by 
falsehood  or  by  fraud,  undertakes  to  ride  free  upon  the  carrier's 
conveyance  is  not  a  passenger.*^  And  so  a  person  riding  on  a 
free  pass  issued  to  another  person  and  not  transferable,  or  upon 
a  non-transferable  mileage  ticket,  who  falsely  represents  him- 
self to  be  the  person  to  whom  it  was  issued,  and  by  way  of  carry- 
ing out  the  deception  signs  the  person's  name  to  the  check,  to 

83  Gulf,   etc.    R.   Co.   V.   Looney,  se  McVeety   v.   Railway   Co.,   45 

85  Tex.  158,  16  L.  R.  A.  471,  and  Minn.  268,  47  N.  W.  809;  Condran 

notes.  V.  Railway  Co.,  14  C.  C.  A-  596,  67 

SI  41  Ohio  St  560.  Fed.  522. 

85  Moore  v.  Railway  Co.,  41  W. 
Va.  ICO. 


§  646. 


PASSENGER   CARRIER  S   LIABILITY. 


719 


whom  the  mileage  or  pass  was  issued,  cannot  be  considered  to  be 
entitled  to  the  rights  of  a  passenger,  and  in  such  case  the 
carrier  may  take  up  the  pass  or  mileage  and  require  the  person 
undertaking  its  fraudulent  use  to  pay  his  fare.  In  Toledo,  etc. 
R.  Co.  V.  Beggs,^'^  it  was  held  that  "a  party  traveling  in  a  rail- 
road coach  on  a  free  pass  issued  to  a  different  person,  which  is 
not  transferable,  and  passing  himself  as  the  person  therein 
named,  is  guilty  of  such  fraud  as  to  bar  his  right  to  recover  for 
a  personal  injury,  except  for  gross  negligence  on  the  part  of  the 
company  amounting  to  wilful  injury."  And  the  same  rule  has 
been  held  to  apply  to  commutation  mileage  tickets  upon  which 
was  a  printed  notice  that  the  ticket  was  not  transferable,  and  if 
presented  by  any  other  than  the  person  whose  name  appeared 
inside  the  cover,  and  whose  signature  was  attached  below,  it 
would  be  forfeited  to  the  company.^^  And  it  has  been  held  that 
if  a  person  knowingly  induces  a  conductor  of  a  railroad  train 
to  violate  a  rule  of  the  company  and  carry  him  without  charge, 
he  is  guilty  of  a  fraud  on  the  company  and  cannot  claim  the 
rights  of  a  passenger.^^ 


87  85  111.  80;  Louisville,  etc.  R. 
Co.  V.  Thompson,  107  Ind.  442,  the 
refusal  of  the  right  to  recover 
except  for  gross  negligence, 
which  is  equal  to  w^ilful  injury, 
is  in  accord  with  the  legal  rule 
that  "the  carrier  owes  no  duty  to 
an  intruder."  Chicago,  etc.  R.  Co. 
V.  Herring,  57  111.  59.  Where  one 
by  fraudulent  representations,  as 
to  his  age  and  occupation  pro- 
cured a  student's  reduced  fare 
ticket,  held  not  a  passenger  but  a 
trespasser.  Fitz  Maurice  v.  New 
York,  etc.  R.  Co.,  192  Mass.  159, 
78  N.  E.  418,  6  L.  R.  A.  (N.  S.) 
1146,  and  notes;  Grahn  v.  Inter- 
national,   etc.    R.    Co.    (1906),    — 

Tex.  ,  93   S.  W.  104,  5  L.  R. 

A.    (N.  S.)   125. 

88  Way  v.  Chicago,  etc.  R.  Co.,  64 
Iowa,  48;  and  see  cases  cited  in 
opinion,  p.  52.  Thompson  on  Car- 
riers of  Passengers,  43,  sec.  3, 
where  the   author   says   this   doc- 


trine extends  farther  and  includes 
the  case  of  one  who  knowingly 
induces  the  conductor  of  a  train 
to  violate  the  regulations  of  the 
company  and  disregard  his  ob- 
ligations of  fidelity  to  his  em- 
ployer. 

89  McVeety  v-  Railway  Co.,  45 
Minn.  268.  The  court  say:  "But 
if  a  person  solicits  and  secures 
free  transportation,  or  if  he  rides 
upon  a  part  of  the  train  from 
which  passengers  are  excluded, 
or  takes  passage  upon  a  train  not 
allowed  to  carry  passengers, 
knowing  that  his  act  is  against 
the  rules  of  the  carrier,  and  in 
permitting  it  the  conductor  is  dis- 
obedient, he  is  guilty  of  a  fraud 
and  not  entitled  to  a  passenger's 
rights."  Citing  Toledo,  etc.  Co. 
v  Brooks,  81  111.  245;  Same  v. 
Beggs,  85  111.  80;  Robertson  v. 
Railway  Co.,  22  Barb.  91;  Union 
Pac.   Ry.   Co.   v.   Nichols,   8   Kan- 


720  CARRIERS   OF  PASSENGERS.  [§    647. 

§  647.  Sleeping-car  companies. — Sleeping-car  companies,  so 
far  as  becoming  responsible  for  the  carriage  of  passengers  and 
their  valuables,  are  not  common  carriers  of  passengers.  As  is 
well  understood,  railroad  companies  are  under  contracts  to  haul 
the  ears  of  sleeping-car  companies,  and  they  alone  are  liable  to 
the  passenger  as  common  carriers  upon  their  contract  for  car- 
riage. The  passenger  rides  upon  the  ticket,  or  permission  issued 
by  the  railroad  company ;  ^  the  railroad  company  by  its  servants 
and  through  its  direction  manages  and  controls  the  running  of 
the  train  and  the  receiving  of  all  passengers  and  their  effects 
upon  it,  and  is  therefore  liable  to  the  passenger  for  his  baggage 
and  valuables  as  a  common  carrier.®^  But  while  sleeping-car 
companies  are  not  liable,  as  has  been  said,  as  common  carriers, 
they  hold  out  to  the  public  that  passengers  who  pay  an  extra 
price  for  riding  in  their  vehicles  will  be  cared  for,  and  such  bag- 
gage as  is  usually  understood  to  be  hand-baggage  will  be  looked 
after,  especially  when  such  passengers  are  asleep  in  their  berths, 
and  for  this  purpose  the  companies  keep  a  servant  on  board  the 
car  to  attend  to  the  wants  of  passengers  and  to  keep  watch  over 
their  effects  when  the  passenger  is  unable  to  do  so ;  and  while,  as 
was  said  by  the  court  in  Bhim  v.  Pullman  Car  Co.,  above  cited, 
''neither  as  a  common  carrier  nor  as  an  innkeeper  is  a  sleeping- 
car  company  responsible,"  still  it  was  held  that  "it  must  not 
only  furnish  a  berth  to  its  guests,  but  keep  a  watch  during  the 
night,  exclude  unauthorized  persons  from  the  car  and  take  rea- 
sonable care  toward  preventing  thefts;  and  if  loss  should  occur 
by  reason  of  negligence  in  this  regard  the  company  is  liable  for 
such  articles  as  are  usually  carried  by  a  passenger  about  his  per- 
son, and  such  a  sum  as  may  be  deemed  reasonably  necessary  for 
traveling  expenses." 

Where  the  porter  of  a  car  went  to  sleep  during  his  watch  and 
also  left  the  ear  at  a  station  with  no  one  on  watch  inside,  it  was 
held  that  the  sleeping-car  company  should  be  held  liable  for  loss 

505;    Gulf  Ry.   Co.   v.    Camel,    76  Mass.     267,     58    Am.    Rep.     135; 

Tex.  174,  and  other  cases.  Woodruff     Sleeping-Car     Co.     v. 

90  Pullman  Car  Co.  v.  Smith,  73  Delhi,    84   Ind.    474,    43   Ami.   Rep. 

111.  360,  24  Am.  Rep.  258;   Scaling  102;    Pullman  Car  Co.  v.  Pollock, 

V.  Pullman  Car  Co.,  24  Mo.  App.  69  Tex.  102. 

29;    111.   Cent.   Ry.   Co.  v.   Handy,  si  Blum  v.   Pullman  Car  Co.,   1 

63    Miss.    609,    56   Am.   Rep.    846;  Flip.    500    (C.    C.    W.    D.    Tenn.), 

Wing    V.     Sleeping-Car    Co.,    143  Fed.  Cases,  No.  1,574. 


§    647.]  PASSENGER   CARRIER'S   LLVBILITY.  721 

of  the  passenger's  effects.®^  And  so  where  both  the  conductor 
and  the  porter,  being  asleep  at  the  rear  end  of  the  ear  for  two 
or  three  hours,  left  the  door  unlocked,  and  a  brakeman  sitting  in 
the  front  end  of  the  car,  during  which  time  there  was  stolen 
from  the  passenger's  berth,  while  he  was  asleep,  certain  of  his 
baggage,  it  was  held  that  the  company  was  liable;  but  the  lia- 
bility of  a  sleeping  or  palace-car  company  is  not  limited  to  the 
care  of  the  baggage  and  articles  of  the  passengers  during  the 
night,  but  they  are  liable  at  all  times  to  exercise  ordinary  vigi- 
lance over  such  property  of  a  passenger  as  would  usually  be 
taken  into  the  car  with  him  and  is  placed  in  the  care  and  custody 
of  the  servants  of  the  company.  As  has  been  said,  the  baggage 
for  which  the  company  may  become  liable,  for  failure  to  ex- 
ercise ordinary  diligence  in  caring  for  it,  is  limited  to  what  is 
ordinarily  understood  as  hand-baggage,  or  articles  which  are 
kept  with  the  passenger  upon  his  journey ;  such  as  valises,  over- 
coats, umbrellas,  and  that  which  is  regarded  as  necessary  to  the 
comfort  of  the  traveler  during  his  occupancy  of  the  car.  In  de- 
termining what  may  be  considered  as  such  baggage,  regard  may 
be  had  to  the  plaintiff's  station  in  life,  the  length,  purpose  and 
probable  duration  of  the  journey.''^  The  liability  of  the  com- 
pany, however,  is  not  that  of  an  insurer  of  the  baggage  of  the 
passenger,  but  it  is  in  the  nature  of  the  liability  of  a  bailee  for 
hire.  It  is  said  by  the  Massachusetts  court  that  "such  a  rule  is 
required  by  public  policy,  and  by  the  true  interests  of  both  the 
passenger  and  the  company. ' '  ^*  The  liability  being  based  upon 
the  negligence  of  the  servants  of  the  company,  it  therefore  fol- 
lows that  the  passenger's  contributory  negligence  would  bar  a 
recovery.^^  But  while  the  mere  fact  that  the  passenger  has  been 
robbed  when  asleep  would  not  of  itself  be  evidence  of  negligence, 
yet  if  it  should  appear  that  the  circumstances  of  the  loss  tend 
to  show  that  but  for  the  negligence  of  the  company  or  its  serv- 
ants the  loss  would  not  have  occurred,  a  prima  facie  case  of  neg- 

92  Pullman  Car  Co.  v.  Adams,  as  Root  v.  Sleeping-Car  Co., 
120  Ala.  581,  45  L.  R.  A.  767.  supra;   WMtney   v.   Pullman   Car 

93  Root  V.  N.  Y.  Cent.  R.  Co.,  28  Co.,  143  Mass.  243;  Wicher  v. 
Mo.  App.  199;  Hampton  v.  Pull-  Boston,  etc.  Co.,  176  Mass.  275, 
man  Car  Co.,  42  Mo.  App.  134.  57  N.  E.  601;  Levien  v.  Webb,  61 

9* Lewis  V.  New  York  Sleeping-  N.  Y.  S.  1113,  30  Misc.  Rep.  196; 
Car  Co.,  143  Mass.  267,  58  Am.  Lycett  v.  Railway  Co.,  42  N.  Y. 
Rep.  135.  S.  413. 

46 


722  CARRIERS  OF  PASSENGERS.  [§  648. 

ligence  would  arise,  and  the  burden  of  proof  of  ordinary  dili' 
gence  in  such  case  would  be  upon  the  company.  As  has  been 
said,  "the  sleeping  passenger  can  never  know  whether  the  de- 
fendant's servants  are  keeping  diligent  watch,  and  they  have 
the  strongest  interest  to  exonerate  themselves  from  any  charge 
of  negligence.  A  rule  that  would  prevent  the  case  from  going 
to  the  jury  without  affirmative  proof  that,  at  the  time  when  the 
theft  took  place,  or  at  some  time  during  the  night,  the  defend- 
ant's servants  were  not  keeping  watch,  would,  in  most  cases,  de- 
prive passengers  of  any  redress  for  the  losses  which  they  might 
sustain  through  the  negligence  of  the  servants  of  such  carriers 
Such  a  rule  is  not  only  against  reason,  but  is  against  public  pol- 
icy,-and  ought  not  to  be  declared. "®® 

§  648.  Not  liable  as  innkeepers. — Some  of  the  courts  have 
held  that  the  sleeping-car  companies  are  liable  as  innkeepers,^'' 
but  the  great  weight  of  authority  is  against  such  a  holding.  As 
was  said  by  the  Kentucky  court,  "a  sleeping-car  is  no  more  an 
inn  on  wheels  than  a  steamboat  is  an  inn  on  water. "  ^^  "  The 
traveler  cannot,  like  the  guest  of  an  inn,  lock  his  door  and  guard 
against  danger."  And  as  has  been  said,  "the  peculiar  construc- 
tion of  such  cars  .  .  .  the  innkeeper's  right  to  exclude  all 
but  guests  and  their  own  servants,  the  company  being  bound  to 
admit  train  employees,  the  inability  of  the  defendant  to  protect 
the  passenger,  the  railroad  conductor  having  power  to  eject  him 
for  non-payment  of  fare  or  violation  of  the  rules  and  regula- 
tions," all  these  would  indicate  that  there  is  a  great  difference 
between  the  innkeeper  and  the  sleeping-car  company.  The  pas- 
senger is  entirely  in  the  care  and  custody  of  the  servants  of  the 
company.  He  lies  down  at  night  and  sleeps,  not  behind  bolts 
and  locks,  but  protected  only  by  the  servants  of  the  company 
who  are  supposed  to  be  on  watch.^^  It  therefore  follows  as  mat- 
ter of  course  that  for  thefts  committed  by  its  servants  the  com- 
pany would  be  liable.^ 

96Bevis  V.  Railway  Co.,  26  Mo.  pre,  54  Fed.  646,  21  L.  R.  A.  289. 

App.  21.  Sleeping-car    company    liable    for 

97  Pullman  Car  Co.  v.  Lowe,  28  property  stolen  while  in  porter's 
Neb.  239,  6  L.  R.  A.  809.  care.     Pullman  Car  Co.  v.  Lowe, 

98  Pullman  Car  Co.  v.  Gaylord,  28  Neb.  239.  For  collection  of 
6  Ky.  Law.  R.  270,  23  Am.  L.  cases  see  L.  R.  A,  Index-Digest, 
Reg.   (N.  S.)   788.  117. 

99  Blum  V.  Pullman  Car  Co.,  i  Allen  v.  Railway  Co.,  119  N. 
supra;  Mann  Boudoir  Co.  v.  Du-  C.  710,  25  S.  E.  787.     As  to  rigfit 


§    649.]  PASSENGER   CARRIER'S  LIABILITY.  723 

III. 

Ejection  of  Passengers  and  Intruders  from  the  Vehicle  op 

THE  carrier. 

§  649.  The  right — The  cause — ^The  manner — By  whom. — A 
common  carrier  of  passengers  may  insist  upon  the  passenger,  or 
person  upon  his  vehicle,  complying  with  certain  rules  and  regu- 
lations that  are  just  and  reasonable,  and  which  must  necessarily 
be  complied  with  as  a  fulfillment  of  the  implied  contract  for 
carriage  upon  the  part  of  the  passenger.  As,  for  example,  one  of 
the  evidences  of  the  right  of  the  person  to  be  carried  is  that  he 
has  a  ticket,  or  proffers  the  reasonable  compensation  due  the  car- 
rier for  transportation;  that  he  conducts  himself  in  an  orderly 
and  decent  manner;  that  he  is  a  fit  person  to  be  carried  and 
complies  with  the  just  and  reasonable  regulations  of  the  carrier ; 
that  he  has  taken  his  place  in  the  usual  and  proper  place  for  pas- 
sengers upon  the  vehicle  of  the  carrier.  In  short,  that  he  has 
done  that  which  entitles  him  to  become  a  passenger.  If,  there- 
fore, the  passenger  refuses  to  comply  with  these  reasonable  regu- 
lations, or  if  the  person  upon  the  vehicle  of  the  carrier  is  a  tres- 
passer and  refuses  to  become  a  passenger  by  compliance  with 
such  rules  and  regulations  of  the  carrier,  such  person  may  be 
ejected  from  the  vehicle,  for  the  law  will  not  hold  the  carrier  to 
the  performance  of  his  duties  and  obligations  to  the  public  and 
those  whom  he  carries  as  passengers,  and  at  the  same  time  de- 
prive him  of  the  right  to  insist  upon  compliance  upon  the  part  of 
those  whom  he  carries  with  such  just  and  reasonable  regulations 
as  are  necessary  in  order  to  make  it  possible  for  the  carrier  to  do 
his  duty  to  the  passenger  and  to  the  public.  There  is,  as  we 
have  seen,  not  only  an  implied  contract  on  the  part  of  the  car- 
rier to  carry  the  passenger  safely,  and  to  exercise  that  high  de- 
gree of  diligence  which  the  law  lays  upon  him,  but  there  is  also 
an  implied  obligation  upon  the  part  of  the  passenger  that  he 
will  comply  with  aU  the  just  and  reasonable  regulations  of  the 

to  eject  passengers  holding  tick-  Ohio  St.  214,  it  was  held  that  "a 

ets  for  stations  at  which  trains  railroad  company  has  the  right  to 

do  not  stop,  see  Chicago,  etc.  Co.  require    passengers    to   pay   fare, 

V.    Bills,    104    Ind.    13;    Atchison,  and  a  rule  directing  its  conduct- 

etc.  Ry^  Co.  V.  Gants,  38  Kan.  608;  ors  to  remove  from  the  cars  those 

Patry  v.  Railway  Co.,  77  Wis.  218.  who   refuse   to   comply   with   the 

In    Shelton    v.    Railway    Co.,    29  requirement  is  reasonable." 


724  CARRIERS    OF   PASSENGERS.  [§    650. 

carrier.  Involved,  therefore,  in  the  question  of  liability  for 
ejecting  a  passenger,  or  an  intruder,  or  trespasser  from  the  ve- 
hicle of  the  carrier,  is  not  only  the  right  of  the  carrier  to  do  so, 
but  the  cause  for  which  it  is  done,  the  manner  in  which  it  is 
done,  and  the  authority  of  the  servant  or  person  who  does  it. 

§  650.  The  causes  numerous. — It  would  hardly  be  pos- 
sible here  to  enumerate  the  causes  for  which  the  carrier  might 
expel  the  passenger.  It  may  be  said,  however,  generally,  that 
when  a  person  is  once  accepted  as  a  passenger  he  cannot  be  exr 
pelled  except  for  some  misconduct;  as  for  refusal  to  produce  a 
ticket  or  pay  his  fare,  for  drunkenness,  disorderly  conduct,  for 
practicing  or  committing  offenses,  for  crimes  or  misdemeanors 
upon  other  passengers ;  as,  for  example,  stealing  from  them,  pick- 
ing pockets,  gambling,  and  the  like,  being  afflicted  with  a  con- 
tagious disease,  or  in  general  for  refusing  to  comply  with  the 
reasonable  rules  and  regulations  of  the  carrier.  And  so  it  has 
been  held  that  the  conductor  of  a  train  is  authorized  to  put  off, 
without  using  unnecessary  force,  a  passenger  whose  ticket  calls 
for  a  station  at  which  he  knows  that  the  train  does  not  stop,  the 
passenger  refusing  to  pay  his  fare,  although  such  passenger  has 
been  informed  by  the  conductor  of  another  train  that  if  he 
boards  the  train  the  conductor  would  be  obliged  to  let  him  off  at 
his  station.  "A  passenger  on  a  railroad  train  must  show  his 
ticket,  or  conductor's  check  given  in  the  ticket's  place,  when 
called  upon  by  the  conductor,  and  if  he  fails  to  do  so,  whether 
wilfully  or  because  he  has  forgotten  having  the  ticket  or  check, 
and  refuses  to  pay  fare,  he  cannot  recover  damages  for  his  ejec- 
tion if  unnecessary  force  is  not  used. ' '  ^  This  is  undoubtedly  the 
prevailing  rule.  And  where  a  father  refused  to  pay  the  fare 
of  his  child,  who  was  eight  years  of  age  and  liable  to  pay  fare, 
it  was  held  ''that  the  law  implies  a  contract  on  the  part  of  a 
parent  who  enters  a  railroad  train  with  a  child  non  sui  juris, 
and  subject  to  payment  of  fare,  to  pay  the  fare  of  such  child, 
and  upon  refusal  to  do  so  the  railroad  company  has  the  right  to 
eject  both  the  father  and  the  child  from  the  train.  "^ 

2  Price   V.   Railway   Co.,   46   W.  Minn.  404,  82  N(.  W.  675;  Price  v. 

Va.  538,  33  S.  E.  255;   Trezona  V.  Railway   Co.,   46  W.   Va.   538.     A 

Railway    Co.,    107    Iowa,    22;    111.  passenger's    failure    to    pay    the 

Cent.  R.  Co.  v.  Bauer,  66  111.  App.  fare  of  a  child  under  his  care  will 

134,  justify   his    expulsion    though    he 

sBraun     v.     Railway     Co.,     79  himself  is  a  minor.     Warfield  v. 


§    651.]  PASSENGER    CARRIER'S    LIABILITY.  725 

§  651.  Passenger's  reliance  upon  statements  and  prom- 
ises of  servants  and  agents  of  the  carrier. — The  passenger,  as 
a  general  rule,  is  in  the  hands  of  the  servants  of  the  carrier,  and 
has  a  right  to  rely  upon  the  statements  and  conduct  of  such  serv- 
ants, where  such  statements  or  conduct  are  not  clearly  and  pal- 
pably unreasonable.  But  while  the  passenger  has  the  right  to  so 
rely  upon  these  statements,  it  has  been  generally  held  that  con- 
ductors are  not  bound  to  rely  upon  the  statements  of  other  con- 
ductors, or  even  agents  at  the  stations,  communicated  to  them  by 
the  passenger.  And  so  where  passengers  have  been  ejected  from 
the  train  of  the  carrier  for  the  reason  that  a  former  conductor 
had  taken  up  his  ticket  and  failed  to  issue  to  him  a  check,  or 
other  evidence  that  he  was  entitled  to  be  conveyed,  the  courts 
have  held  that  the  conductor  so  ejecting  the  passenger  was  not 
guilty  of  breach  of  duty,  but  that  the  railroad  company  might 
be  liable  because  of  the  action  of  the  former  conductor ;  as  where 
it  was  a  regulation  of  a  railroad  company  that  one  who  pays  his 
fare  between  two  points  on  the  road,  but  desires  to  stop  over  at 
an  intermediate  point,  is  required  to  procure  a  stop-over  ticket 
from  the  conductor  and  present  it  to  the  conductor  of  the  train 
on  which  he  seeks  to  complete  his  journey  as  evidence  of  his  right 
to  do  so. 

And  where  a  passenger  asks  the  proper  conductor  for  a  stop- 
over ticket,  and,  through  the  conductor's  fault,  receives,  instead 
thereof,  only  a  trip  check,  it  was  held  that  "such  a  regulation 
was  a  reasonable  one,  and  that  the  second  conductor  may  still 
demand  of  him  the  additional  fare,  and  upon  his  refusal  to  pay 
it  may  eject  him  from  the  train  at  some  usual  stopping  place, 
using  no  unnecessary  force;  and  that  such  ejection  will  be  no 
ground  for  recovery  against  the  company,  although  such  com- 
pany will  be  liable  to  the  passenger  for  the  fault  of  the  first  con- 
ductor. ' '  *  But  upon  this  question  the  authorities  are  not  entirely 

Railway  Co.,  104  Tenn.  74;   Lake  passenger  is   not  called   upon   to 

Shore,  etc.  R.  Co.  v.  OmdorfE,  55  question  the  right  of  a  conductor 

Ohio    St.    589,    38   L.   R.    A.   140;  in  taking  up  a  ticket  in  order  to 

Philadelphia,  etc.  R.  Co.  v.  Hoef-  preserve  the  right  to  be  carried 

lict,  62  Md.  300,  50  Am.  Rep.  223.  to  destination.     The  wrongful  ex- 

4  Yorton     v.     Railway    Co.,     54  pulsion  of  a  passenger  by  a  con- 

Wis.  234 ;   Van  Dusan  v.  Railway  ductor,  who  had  no  ticket  because 

Co.,    97    Miohi.    439;     Hufford    v.  it  had  been  taken  up  by  another 

Railway    Co.,    53    Mich.    118.      A  conductor,     renders     the     carrier 


726  CARRIERS    OF   PASSENGERS.  [§    652. 

harmonious.  In  the  case  of  O'Rourke  v.  Railway  Co.,^  the  au- 
thorities have  been  collected  in  the  opinion  of  the  court  and  dis- 
cussed, and  after  citing  authorities  pro  and  con  the  court  say: 
"We  concur  in  the  latter  view,  and  hold  that  a  person  who  makes 
a  valid  contract  is  entitled  to  passage  according  to  its  terms, 
though  the  face  of  the  ticket  furnished  him  may  not  in  any  true 
sense  express  the  contract.  It  is  the  contract  and  not  the  ticket 
that  gives  the  right  to  transportation.  The  ticket  is  but  an  evi- 
dence of  the  contract  made  out  and  furnished  by  the  carrier,  and 
if  it  fail  to  disclose  the  true  contract,  the  fault  is  with  the  car- 
rier, and  it  is  responsible  for  the  natural  consequences  of  the 
variance. ' '  ^ 

But  where  a  passenger  was  ejected  from  a  street-car  to  which 
he  had  transferred  from  another  car,  because  his  transfer  checks 
were  improperly  punched  by  the  conductor  of  the  first  car,  it 
was  held  that  the  carrier  was  liable,  and  that  the  passenger  could 
recover  therefor,  where  on  the  refusal  of  the  second  conductor  to 
accept  the  transfer  check,  and  before  he  was  ejected,  the  passen- 
ger made  a  statement  to  the  conductor  showing  that  the  fault 
in  the  ticket  was  due  to  the  negligence  of  the  first  conductor.^ 
And  where  the  passenger  was  induced  by  the  fault  of  the  sta- 
tion agent  to  take  a  train  not  scheduled  to  stop  at  his  destina- 
tion, it  was  held  he  was  entitled  to  recover  upon  ejection  from 
the  train  "before  reaching  his  destination  as  for  a  tort,  and  not 
merely  for  breach  of  contract. ' '  * 

§  652.  Tendering  faxe  to  avoid  ejection. — It  seems  to  be  gen- 
erally conceded  by  the  authorities  and  the  courts  that  when  the 
train  is  stopped  for  the  express  purpose  of  ejecting  a  passenger 
who  has  refused  to  pay  his  fare,  or  produce  a  ticket,  or  check, 
or  permission  from  the  carrier  for  his  conveyance,  it  is  too  late 
for  him  to  pay  or  tender  his  fare,  and  that  the  carrier  can  re- 
fuse to  aUow  him  to  ride  upon  the  train,  and,  if  he  has  been 

liable.     Sloan  v.  Railway  Co.,  Ill  Ohio   St.   370;    Pennington   v.   111. 

Cal.  220,  32  L.  R.  A.  193;  and  see  Cent.    Ry.    Co.,    69    111.    App.    628; 

notes  and  briefs.  Ellsworth     v.     Railway     Co.,     95 

5  103  Tenn.  124,  46  L.  R.  A.  C14.  Iowa,  98,  24  L.  R.  A.  173.     In  Mc- 

G  For   authorities   cited,    see   46  Donald  v.  Central  R.  Co.,  72  N.  J. 

L.  R.  A.,  note,  p.  614,  and  opinion,  280,  62  Atl.  405,  2  L.  R.  A.  (N.  S.) 

p.  615,  etc.  505,  the  authorities  are  collected 

"^  O'Rourke  v.  Street  Ry.  Co.,  103  and    discussed.      The    notes    pub- 

Tenn.  124,  46  L.  R.  A.  614.  lished  in  L.  R.  A.  cited   are  full 

8  RejTiolds    V.    Railway    Co.,    55  and  cases  cited. 


§    653.]  PASSENGER    CARRIER'S    LIABILITY  727 

ejected,  to  admit  him  again  upon  the  train.  This  has  been  held 
although  the  train  was  stopped  at  a  station  where  it  is  not  sched- 
uled to  stop.  If,  however,  the  passenger  is  carried  to  a  regular 
stopping  station  of  the  train  and  there  ejected,  he  may  procure 
a  ticket  or  again  board  the  train  and  pay  his  fare  and  is  en- 
titled to  be  carried.  The  distinction  seems  to  be  that  he  is  not 
entitled  to  be  carried  where  the  train  is  stopped  for  the  express 
purpose  of  putting  him  off;  and  the  same  rule  has  been  applied 
before  the  ejection  if  the  train  has  been  stopped  for  the  express 
purpose  of  ejecting  the  passenger.^  The  passenger,  however,  is 
entitled  to  reasonable  time  if  he  alleges  that  he  had  a  ticket 
which  is  lost,  or  if  there  is  hesitation  as  to  his  payment  and  he 
seems  willing  to  pay,  or  where  he  proposes  to  obtain  the  money 
from  another  passenger;  the  rule  would  seem  to  be  that  where 
there  is  no  wilful,  or  at  least  positive,  refusal  to  pay  the  fare, 
the  conductor  would  be  bound  to  receive  the  fare  from  a  third 
person  if  offered  before  the  ejection  of  the  passenger  who  has  no 
ticket  or  money.  At  all  events,  the  conductor  should  not  hastily 
take  steps  to  eject  the  passenger  who  seems  to  be  endeavoring  to 
comply  by  the  production  of  a  ticket,  or  the  payment  of  the 
money,  or  who  does  not  refuse  to  comply  with  his  request.^" 

§  653.  The  manner  of  ejecting. — No  matter  for  what 

cause  the  passenger  is  ejected,  the  conductor  or  servants  of  the 

»  Pease  v.  Railway  Co.,  11  Daly  stopped   purposely  at  the   station 

(N.   Y.),   350;    Cincinnati,   etc.   R.  to   put  him  off,  he  may  pay  the 

Co.  V.  Skillman,  39  Ohio  St.  445;  fare.     Gould   v.   Railway   Co.,    18 

O'Brien  v.  Railway  Co.,  15  Gray,  Fed.   155;    Stone  v.   Railway   Co.. 

20,  77  Am.  Dec.  347;  Hoffbauer  v.  47  Iowa,  82. 

Railway  Co.,  52  Iowa,  342,  35  Am.  lo  Texas,  etc.  Co.  v.  Bond,  62 
Rep.  278.  But  where  the  train  Tex.  442,  50  Am.  Rep.  532;  Loui^- 
has  stopped  at  a  regular  stop-  ville  R.  Co.  v.  Garrett,  8  Lea,  438, 
ping  place,  an  offer  to  pay  fare  41  Am.  Rep.  640.  And  in  Cali- 
before  a  passenger  is  ejected  fornia  it  was  held  that  a  tender 
must  be  accepted.  O'Brien  v.  by  a  passenger  of  the  remainder 
Railway  Co.,  80  N.  Y.  236.  But  of  his  fare  is  in  time,  although 
if  the  train  does  not  regularly  the  train  has  stopped  for  the  pur- 
stop  at  the  station  and  is  stopped  pose  of  ejecting  him,  where  the 
for  the  purpose  of  expelling  him,  money  which  he  had  already  paid 
he  is  not  entitled  to  prevent  his  to  the  conductor  had  not  been  re- 
expulsion  and  continue  his  pas-  turned.  Bland  v.  Railway  Co.,  55 
sage  on  that  train  by  tendering  Cal.  570.  See  also  Georgia,  etc. 
fare.  Pickens  v.  Railway  Co.,  104  Co.  v.  Asmore,  88  Ga.  529,  16  L. 
N.  C.  312;  O'Brien  v.  Railway  Co.,  R.  A,  53. 
supra.     But   if   the   train    is    not 


728  CARRIERS    OF   PASSENGERS.  [§    654. 

company  must  use  no  more  force  than  is  necessary,  and  under 
no  circumstances  will  they  be  excused  for  ejecting  a  passenger 
while  the  train  is  running  at  a  rate  of  speed  that  might  endanger 
his  life  or  limb.  And  this  rule  obtains  even  though  the  passen- 
ger is  a  trespasser  or  an  intruder  upon  the  vehicle  of  the  car- 
rier. And  so  it  has  been  held  that  a  carrier  is  liable  for  an  in- 
jury sustained  by  the  malicious  and  wilful  act  of  its  brakeman 
in  expelling  one  who  is  a  trespasser  from  the  train."  It  has  been 
held  that  indecent,  insulting  and  vulgar  language  of  a  passenger, 
unaccompanied  by  threats,  does  not  justify  the  conductor  in  as- 
saulting him;  that  he  may  use  sufficient  force  to  eject  him  but 
no  more.^^ 

§  654.  The  condition  of  the  passenger  must  be  taken  into  ac- 
count.— The  actions  of  the  servants  of  the  company  in  ejecting 
a  passenger  must  be  humane ;  and  where  the  passenger  is  afflicted 
with  sickness  or  any  physical  disability,  or  even  is  intoxicated 
and  not  in  a  condition  to  look  out  for  his  own  safety  the  carrier 
is  bound  to  take  all  this  into  account  and  to  treat  the  passenger 
accordingly.  And  so  it  has  been  held  "that  the  drunken  con- 
dition of  a  passenger  would  not  excuse  a  carrier  from  liability 
for  negligently  leaving  him  exposed  on  a  railroad  track,  where 
he  had  fallen  from  a  train  through  the  carrier's  fault,  and  was 
in  consequence  dazed  and  his  mental  faculties  impaired  in  con- 
sequence of  the  fall. ' '  " 

list.  Louis  V.  Kilpatrick,  67  v-  Railway  Co.,  11  Nev.  350;  N.  J., 
Ark.  47;  Southern  Ry.  Go.  v.  etc.  Co.  v.  Brockett,  121  U.  S.  637. 
Wildman,  119  Ala.  565;  Brennan  If  the  conductor,  acting  in  the 
V.  Railway  Co.,  72  Mo.  App.  107;  performance  of  his  duty,  exceeds 
Mclver  v.  Railway  Co.,  110  Ga.  the  degree  of  force  necessary  and 
223;  Chicago,  etc.  Co.  v.  Casazza,  injury  results,  the  company  is 
83  111.  App.  421.  Indecent,  insult-  liable.  Jackson  v.  Railway  Co., 
ing  language  of  a  passenger,  un-  47  N.  Y,  44.  See  note  to  South- 
accompanied  by  threats  or  vio-  ern,  etc.  Co.  v.  Sanford,  11  L.  R. 
lence,  will  not  justify  assault.  A.  432;  Lafitte  v.  Railway  Co.,  43 

12  Weber  v.  Railway  Co.,  62  N.  La.  Ann.  34,  12  L.  R.  A.  237. 
Y.  Supp.  1.  When  the  force  used  is  Cincinnati,     etc.     R.     Co.     v. 

to   eject   amounts   to   wanton   as-  Cooper,  120  Ind.  469,  6  L.  R.  A. 

sault,  the  fact  as  to  whether  the  241.     See   Louisville,   etc.    Co.   v. 

plaintiff  was  rightfully  or  wrong-  Logan,  88  Ky.  232,  3  L.  R.  A.  80; 

fully  upon  the  train  is  not  an  ele-  Mo.  Pac.  R.  Co.  v.  Evans,  71  Tex. 

ment  in  the  question  of  mere  re-  361,  1  L.  R.  A.  476;    Roseman  v. 

covery.   Toledo,  etc.  Co.  v.  Marsh,  Railway  Co.,  112  N.  C.  709,  19  L. 

17  Ohio  C.  G.  Rep.  379;    Quigley  R.  A.  327.     As  to  caring  for  pas- 


§    657.]  PASSENGER    CARRIER'S    LIABILITY.  729 

Where  a  street-car  conductor,  supposing  that  the  passenger 
was  drunk,  but  in  fact  he  was  stricken  with  appoplexy,  removed 
him  from  the  car  in  a  helpless  condition  and  laid  him  in  the 
street  on  a  bleak,  drizzling  day  and  there  abandoned  him,  it  was 
held  the  company  was  liable.  And  so,  as  we  have  seen,  the  gen- 
eral rule  is  that  the  refusal  of  a  passenger  to  pay  his  fare  will 
not  justify  any  act  which  would  put  human  life  in  peril ;  and  the 
passenger  has  a  right  to  repel  an  attempt  to  eject  him  in  order 
to  save  his  own  life,  or  to  save  himself  from  great  bodily  injury, 
because  of  the  unjustifiable  assault  of  the  conductor.^* 

VI. 

When  the  Carrier  is  Excused. 

When  the  injury  or  loss  is  caused  by  the  act  of  God  or  the 
public  enemy,  or  occasioned  by  the  fault  of  the  party  injured, 
that  is,  where  he  has  been  guilty  of  contributory  negligence,  the 
carrier  will  be  excused. 

§  655.  When  caused  by  the  act  of  God. — The  carrier  will 
not  be  held  liable  when  the  injury  or  loss  is  the  immediate  re- 
sult of  the  act  of  God,  *.  e.,  the  immediate  result  of  natural 
causes  "without  the  intervention  of  man,  and  could  not  have 
been  prevented  by  the  exercise  of  prudence,  diligence  and  care 
and  the  use  of  those  appliances  which  the  situation  of  the  party 
renders  it  reasonable  that  he  should  employ. ' '  ^^ 

§  656.  The  public  enemy. — And  so  if  the  injury  or  loss  be 
the  direct  and  immediate  cause  of  an  act  of  the  public  enemy, 
the  carrier  is  not  liable. 

§  657.  Contributory  negligence. — If  the  negligence  of  the 
passenger  has  materially  contributed  to  the  loss  or  injury,  and 
to  an  extent  that  it  may  be  said  to  be  the  proximate  and  natural 
cause  of  the  injury,  there  can  be  no  recovery  therefor.  The  prin- 
ciple is  well  settled  that  one  cannot  recover  for  an  injury  brought 

senger    in    an    intoxicated    condi-  Railway   Co.,   90   N.   Y.   77;    New 

tion.   Fox  V.   Mich.   Cent   R.   Co.,  Jersey  v.  Brockett,  121  TJ.  S.  637. 

138  Mich.  433,  5  Am.  &  Eng.  Ann.  is  See  note,  43  Cent.  Law  Jour. 

Cases,    68.      And    see    cases    col-  427,    where    cases    are    collected; 

lected  in  notes  72  and  73.  Wald  v.  Pittsburg,  etc.  R.  Co.,  162 

14  Connolly    v.    Street    Car    Co.,  111.    545,   43    Cent.   Law   Jour.   423 

41  La.  Ann.  57;   Hoffman  v.  Rail-  (Johnstown  Flood  Cases), 
■way  Co.,   87  N.  Y.   24;    Lynch  v. 


730  CARRIERS    OP   PASSENGERS.  [§    657, 

upon  himself  by  his  own  fault.  "Regarding  the  case  of  negligent 
injury,  the  general  result  of  the  authorities  seems  to  be  that  if 
the  plaintiff  or  party  injured,  by  the  exercise  of  ordinary  care, 
under  the  circumstances,  might  have  avoided  the  consequences 
of  the  defendant's  negligence,  but  did  not,  the  case  is  one  of 
mutual  fault,  and  the  law  will  neither  cast  all  the  consequences 
upon  the  defendant  nor  will  it  attempt  any  apportionment  there- 
of. ' '  ^"  The  English  rule,  which  is  generally  followed  in  this- 
country,  may  be  said  to  be  as  stated  in  Tujf  v.  Warman,^''  that 
the  mere  negligence  or  want  of  ordinary  care  and  caution  would 
not  disentitle  an  injured  person  to  recover  unless  it  were  such 
that  but  for  that  negligence  and  want  of  ordinary  care  and  cau- 
tion the  misfortune  could  not  have  happened;  or  if  the  negli- 
gence of  the  injured  person  might,  by  the  exercise  of  care  on 
the  part  of  the  defendant,  have  been  avoided  and  the  injury  not 
inflicted.  Applying  these  principles  to  the  subject  in  hand,  it 
may  be  said  that  the  passenger  who  seeks  to  recover  for  an  injury 
occasioned  by  the  negligence  of  the  carrier  must  show  not  only 
that  the  carrier's  negligence  was  the  proximate  cause  of  the  in- 
jury, but  that  he  was  exercising  ordinary  care.^^     Upon  this 

16  Cooley  on  Torts,  675;  Abbott  car    when     there    are    seats    in- 

V.  Oregon  R.  Co.,  46  Or.  549,  80  side  held  contributory  negligence. 

Pac.  1012.     One  boarding  a  mov-  Woodroffe  v.  Roxborough,  etc.  R. 

ing  train  guilty  of,  Atchison,  etc.  Ca,  201  Pa.  St.  521;  State  v.  Lake 

Co.  V.  Holloway,  71  Kan.  1,  80  P.  Rowland,  etc.  R.  Co.,  84  Md.  163; 

31;   Spencer  v.  St.  Louis,  etc.  Co.,  Moody  v.   Springfield   St.   R.   Co., 

—   Mo,   App.   — ,   86    S.   W.    593;  182  Mass.  160.   But  if  car  crowded 

Berry  v.  Utica,  etc.  Co.,  181  N.  Y.  and    no    seats,    not    contributory 

198,  73  N,  E.  970;  Kroeger  v.  Se-  negligence  to  so  ride.     The  ques- 

attle,  etc.   Co.,   37  Wash.   544,   79  tion  in  the  given  case  is  one  for 

P.   1115;    Bridge  v.   Jackson,   etc.  the  jury.  Anderson  v.  City  R.  Co., 

Co.,  86  Miss.  584,  38  So.  788;  Chi-  42  Or.  505;  West  Chicago,  etc.  R. 

cago,  etc.  Co.  v.  Albrecht,  114  111.  Co.  v.  McNulty,  64  111.  App.  549; 

474;   Christensen  v.  Metropolitan,  Abel    v.     Northampton     Traction 

etc.   Co.,  137  Fed.  708.     Not  con-  Co.,   212    Pa.    St.    329;    Sellers   v. 

tributory   negligence    for    passen-  Market  St.  R.  Co.,   139   Cal.  268; 

ger  to  undertake  to  alight  before  Hesse    v.    Meriden,    etc.    Co.,    75 

street     car     stopped     for     him.  Conn.     571;     Dickinson     v.     Port 

though    not    at    ordinary    place.  Huron,    etc.    Co.,    53    Mich.    43; 

Selby    V.    Detroit    Ry.    Co.,    141  Bridge    v.    Jackson,    etc.    Co.,    86 

Mich.  112,  104  N.  W.  376;  Walker  Miss.    584,    4    Am.    &    Eng.    Ann. 

V.  Georgia,  etc.  Co.,  122  Ga.  368;  Cases,  662,  and  notes. 
Alabama,    etc.    Co.    v.    Jones,    86  i^    5  C.  B,.  (N.  S.)  573,  585. 

Miss.  263,  38  So.  545.     Riding  on  is  North   Chicago  Street  R.   Co. 

the  running  board  of  open  trolly  v.  Baur,  179  111.  126,  45  L.  R.  A. 


§    659.]  PASSENGER    CARRIER'S    LIABILITY.  731 

quesrt-ion  the  courts  of  the  several  states  do  not  entirely  agree. 
Many  of  the  courts  hold  that  it  is  not  incumbent  upon  the  plaint- 
iff to  allege  this  or  to  prove  it  in  order  to  make  out  a  prima  facia 
ease.^* 

§  658.  Strangers,  trespassers,  intruders. — While,  as  we 

have  seen,  the  carrier  is  not  bound  to  exercise  that  high  degree 
of  diligence  toward  a  stranger,  or  trespasser,  or  intruder,  that 
the  law  demands  he  shall  exercise  toward  a  passenger,  still  hu- 
manity demands  that  he  should  exercise  such  a  degree  of  care 
as  to  not  unnecessarily  cause  damage  or  injury  to  such  a  person ; 
and  so  it  follows  that  if  the  carrier  is  guilty  of  a  degree  of  negli- 
gence that  a  common  respect  for  the  laws  of  humanity  would 
not  tolerate,  he  would  be  guilty,  in  an  action  for  the  injury,  and 
it  would  be  no  defense  that  the  person  injured  was  a  trespasser, 
or  a  stranger,  or  an  intruder.  As,  for  example,  the  carrier  would 
not  be  warranted  in  placing  such  a  person  upon  his  vehicle  in  a 
position  where  he  would  be  obliged  to  leap  from  the  train  when 
it  was  in  motion  to  save  himself  from  other  injuries,  and  if  he 
did  so,  it  could  not  be  said  that  in  thus  leaving  the  train  he  was 
guilty  of  contributory  negligence.^**  And  where  the  conductor 
ordered  a  person  to  get  off  the  train  while  running  at  a  speed 
which  would  endanger  him  in  getting  off,  refusing  to  stop  the 
train  to  allow  him  to  alight,  and  with  violent  and  insulting  lan- 
guage threatened  to  eject  him  from  the  train  by  force  if  his  or- 
ders were  not  obeyed,  and  had  force  at  his  command  to  execute 
such  threat,  and  the  person  jumped  from  the  train  to  avoid 
ejection  by  force,  it  was  held  ' '  that  this  was  sufficient  compulsion 
or  show  of  force  to  excuse  the  person  from  the  charge  of  contrib- 
utory negligence  in  so  jumping  from  the  train. ' '  ^^ 

§  659.  Failure  to  warn  passengers  of  danger. — It  is  a 

general  rule  that  a  passenger  must  exercise  ordinary  care  and 
diligence  in  avoiding  injury.  But  while  this  is  true,  it  may  be 
said  that  it  is  the  duty  of  the  carrier  to  warn  the  passenger  as  to 
dangerous  situations,  and  failing  to  do  so,  the  carrier  will  not  be 
permitted  to  defend  upon  the  ground  of  contributory  negligence 
upon  the  part  of  the  passenger  in  an  action  for  an  injury  re- 
ceived because  of  such  danger.     This  duty  to  warn  the  passenger 

108.    And  see  long  list  of  author!-  74   Miss.   444;    Great  Western  R. 

ties  cited.  Ca  v.  Miller,  19  Mich.  305. 

19  Post  §§  832,  833.  21  Bogges  v.  Railway  Co.,  37  W. 

20  Southern  Ry.   Co.   v.   Hunter,  Va.  297,  23  L.  R.  A.  777. 


732  CARRIERS    OF   PxVSSENGERS.  [§    660. 

against  danger  does  not  apply,  of  course,  to  every  ease.  The 
circumstances  of  the  particular  case  are  to  be  taken  into  consid- 
eration. As,  for  example,  where  a  passenger  cannot  be  said  to 
understand  the  danger  of  his  situation,  or  where  the  passenger 
is  a  young  person,  inexperienced  and  not  aware  of  the  danger 
in  which  he  is  placing  himself;  or  one  who  is  somewhat  de- 
mented or  even  intoxicated,  or  deaf  and  dumb  or  blind;  such 
persons  require  more  attention,  and  the  duty  of  the  carrier  is  to 
extend  to  them  greater  care  than  to  the  ordinary  passenger. 
These,  of  course,  are  but  examples.  Each  case  must  stand  upon 
its  own  particular  circumstances.^^ 

§  660.  A  question  of  fact  for  the  jury  or  of  law  for  the 

court. — ^As  we  have  seen,  the  plaintiff,  in  order  to  recover  in  an 
action  brought  for  personal  injury,  must  not  only  prove  that  the 
injury  was  the  proximate  result  of  negligence  upon  the  part  of 
the  carrier,  but  he  is  also  bound  to  prove,  in  those  states  holding 
it  necessary,  that  he  was  exercising  ordinary  care,  and  that  in 
the  exercise  of  such  ordinary  care  the  injury  could  not  have  been 
avoided.  These  questions  must  necessarily  be  left  to  the  jury 
for  their  findings.^^     The  question  of  contributory  negligence 

22  Louisville,  etc.  R.  Co.  v.  ter  of  law  constitute  such  con- 
Johnston,  108  Ala.  62,  31  L.  R.  A.  tributory  negligence  as  to  defeat 
372;  Isbell  v.  Railway  Co.,  27  recovery,  is  cited  among  other 
Conn.  393,  71  Am.  Dec.  78;  Bren-  cases.  Maguire  v.  Middlesex  R. 
nan  v.  Fairhaven,  45  Conn.  298,  Co.,  115  Mass.  239;  Central  R.  Co. 
29  Am.  Rep.  679;  Pittsburg,  etc.  v.  Mackey,  103  111.  App.  15;  Cin- 
R.  Co.  v..  Caldwell,  74  Pa.  St.  421;  cinnati,  etc.  R.  Co.  v.  Cooper,  120 
Fox  V.  Mich.  Cent.  R.  Co.,  138  Ind.  469.  That  it  is  a  question  for 
Mich.  433,  where  the  text  is  cited  the  jury.  Holding  that  intoxica- 
and  quoted.  See  also  notes  on  tion  cannot  excuse  the  passenger 
the  subject  of  contributory  negli-  from  exercising  ordinary  care, 
gence  collecting  and  discussing  Strand  v.  Chicago,  etc.  R.  Co.,  67 
cases  on  the  subject,  5  Am.  &  Mich.  380;  Fisher  v.  West  Va.  R. 
Eng.  Ann.  Cases,  pp.  72,  73.  As  Co.,  42  W.  Va.  183;  Wheeler  v. 
will  be  noticed  by  the  cases  col-  Grand  Trunk  R.  Co.,  70  Conn, 
lected    in    5    Amv    &    Eng.    Ann.  607. 

Cases  above  cited,  the  authorities  23  McQuilten  v.  Railway  Co.,  64 

are   not  entirely   in   harmony   as  Cal.  463;   Reddington  v.  Traction 

to  how  far  one  intoxicated  is  to  Co.,    132    Pa.    St.    150;    Sonier   v. 

be  held   to   the   rule  of  contribu-  Railway   Co.,   141   Mass.   10;    Pal- 

tory  negligence.     Under  the  note,  mer  v.  Railway  Co.,  87  Mich.  281. 

that  when   a  passenger   is   negli-  But  see  post,  §   833.     Where  the 

gently  injured  who  is  intoxicated,  case  upon   the   facts   is   not   free 

his  intoxication  does  not  as  mat-  from  doubt,  the  court  should  sub- 


§    661.]  PASSENGER    CARRIER'S    LIABILITY,  733 

should  always  be  submitted  to  the  jury  as  a  question  of  fact 
where  the  testimony  is  conflicting  and  the  case  is  not  free  from 
doubt  upon  the  facts,  or  where  candid  and  intelligent  men  might 
reach  different  conclusions  upon  the  facts.^*  Where,  however, 
' '  facts  which  constitute  contributory  negligence  are  not  disputed, 
the  question  is  one  purely  of  law."  And  where  the  uncontra- 
dicted testimony  shows  that  the  injured  party  was  negligent,  it 
is  a  question  of  law  for  the  court  whether  he  was  guilty  of  such 
contributory  negligence  as  would  defeat  the  action.^^  And  it  has 
been  held  that  to  warrant  the  court  in  any  case  in  instructing 
the  jury  that  the  plaintiff  was  guilty  of  negligence,  the  case 
must  be  so  clear  against  him  as  to  warrant  no  other  inference.^*' 

§  661.  Whether   a   question   of   law   or   fact. — As   to 

whether  certain  facts  which  are  shown  to  exist  in  a  given  case, 
without  question  or  dispute,  are  sufficient  to  constitute  negli- 
gence or  diligence  is  a  question  of  law  for  the  court;  whether 
these  facts  actually  exist  in  the  given  case — ^whether  they  are  in 
fact  true, — is  a  question  of  fact  for  the  jury.  And  so  it  follows 
that  the  question  of  diligence  or  negligence  is  generally  one  of 
mixed  law  and  fact.  The  admission  of  proof  proposed,  the  ef- 
fect of  the  evidence  if  adduced,  would  be  questions  of  law  for 
the  court.  The  weight  of  the  testimony  given,  its  sufficiency  to 
prove  negligence  or  diligence,  is  a  question  of  fact  for  the  jury. 

In  Gardner  v.  Bailroad  Co.-''  the  court  say :  ' '  The  question  of 
negligence  is  one  of  law  for  the  court  only  where  the  facts  are 
such  that  all  reasonable  men  must  draw  the  same  conclusion 
from  them,  or,  in  other  words,  a  case  should  not  be  withdrawn 
from  the  jury  unless  the  conclusion  follows  as  matter  of  law 
that  no  recovery  can  be  had  upon  any  view  which  can  be  prop- 
erly taken  of  the  facts  the  evidence  tends  to  establish." 

mit  the  question  of  negligence  to  25  Melzer  v.  Peninsular  Car  Co., 

the  jury.   Sheldon  v.  Railway  Co.,  76    Michl    94;    Apsey   v.    Railway 

59    Mich.    172.     The    question    of  Co.,  83  Mich.  440. 

negligence,   where   the   testimony  26  Detroit,    etc.    R.    Co.    v.    Van 

is  not  conflicting,  is  for  the  court.  Steinberg,    17    Mich.    99;    Hutch. 

Myning  v.  Railway  Co.,  64  Mich.  on  Car.  639. 

93.  27  150    U.    S.    349-361;    Railway 

24  Luke  V.  Wheat  Mining  Co.,  71  Co.    V.    Ives,    144    U.    S.    408-417; 

Mich.  364;  Dundas  v.  Lansing,  75  Railway  Co.  v.  Cox,  145  U.  S.  593, 

Mich.   499;    Underhill  v.  Railway  606;     Sadowski    v.    Cax    Co.,    84 

Co.,  81  Mich.  43;  Grand  Trunk  R.  Mich.  100  ' 
Co.  V.  Ives,  144  U.  S.  408. 


734  CARRIERS    OF    PASSENGERS.  [§    661. 

The  court,  in  Railroad  Co.  v.  Miller,  say:  "It  is  frequently- 
difficult,  perhaps  sometimes  impossible,  to  determine  how  far  the 
question  of  negligence  or  reasonable  diligence  is  a  question  of 
law,  and  how  far  a  question  of  fact.  It  is  generally  a  question 
of  mixed  law  and  fact;  and  always,  when  the  facts  are  found  or 
admitted,  if  they  be  such  that  all  reasonable  men  will  be  likely 
to  draw  from  them  the  same  inferences,  it  is  a  question  of  law 
for  the  court.  But  I  know  of  no  case  in  which  it  can  be  said 
with  accuracy  to  be  exclusively  a  question  of  fact  for  the  jury ; 
some  principle  of  law  will  always  be  applicable  to  the  particular 
state  of  facts,  and  may  be  laid  down  by  the  court ;  the  principle 
may  sometimes  be  very  general  and  abstract,  but  there  is  still  a 
legal  principle  involved.^* 

The  test  seems  to  be,  would  different  minds  honestly  draw 
different  conclusions  from  the  state  of  facts  submitted?  If  they 
would,  then  the  question  must  be  submitted  to  the  jury;  but  if 
the  minds  of  ordinary  men  could  draw  from  the  facts  only  one 
conclusion — if  there  is  no  dispute,  no  different  opinion, — then 
the  question  would  be  for  the  court;  but,  as  has  been  said,  it  is 
€xceedingly  difficult  to  find  a  state  of  facts  where  the  question 
as  to  negligence  or  diligence  would  be  entirely  one  of  law  for  the 
court.     It  is  clearly  a  mixed  question  of  law  and  fact. 

Certain  acts,  when  proven  and  not  disputed  or  admitted,  have 
been  held  to  be,  as  matter  of  law,  negligence ;  ^®  and  yet  upon  an 
examination  of  the  cases  we  are  led  to  conclude  that  no  fixed 
rule  can  be  laid  down  that  wiU  at  all  times  and  under  all  circum- 
stances govern  the  question.  As,  for  example,  it  is  generally 
conceded  that  jumping  from  a  moving  train  is  negligence,  but 
very  much  depends  upon  the  rate  of  speed  at  which  the  train  or 
car  is  moving,  and  the  person  who  jumps  from  it.  If  one  should 
jump  from  a  train  going  at  such  a  rate  of  speed  that  it  would 
be  conceded  by  all  to  be  hazardous  and  imprudent,  when  every 
reasonably  prudent  man  would  say  it  was  fraught  with  danger, 
unquestionably  the  court  would  be  warranted  in  saying  it  was 
negligent.  The  supreme  court  of  Pennsylvania,  in  Jaggers  v. 
BoAlway  Co.,*^  held  that  jumping  from  an  electric  car  moving 

28  25   Mich.   274;    Schoepper   v.  2»  McQuilten  v.  Railway  Co.,  64 

Hancock,  etc.  Co.,  113  Mich.  582;  Cal.  463. 

Lillibridge  v.  McCann,   117   Mich.  3o  180  Pa.  St.  436.   It  is  not  neg- 

84;     Cooley    on    Torts    (2d    ed.),  ligence  per  se  to  attempt  to  leave 

812;   Detroit  R.  Co.  v.  Van  Stein-  a    moving    train;    whether    it    is 

berg,  17  Mich.  99.  negligence   or   not   depends   upon 


§    662.]  PASSENGER    CARRIER'S    LI  ABILITY.  735 

at  the  rate  of  four  or  five  miles  an  hour  is  contributory  negli- 
gence as  matter  of  law,  and  no  doubt  this  was  a  con-ect  holding 
in  the  given  case ;  and  yet  it  goes  without  saying  that  a  railroad 
man  accusrt;omed  to  getting  on  and  off  moving  trains  could  easily 
and  safely  alight  from  a  train  running  at  that  rate  of  speed. 
If  the  car  is  moving  at  a  high  rate  of  speed  there  would  be  no 
question ;  but  if  not,  all  the  circumstances  would  have  to  be  con- 
sidered before  it  could  be  said,  as  matter  of  law,  to  be  negligent. 
It  has  been  held  to  be  "gross  negligence  in  a  person  to  jump 
from  a  car  which  is  going  at  the  rate  of  twenty  miles  an  hour, 
whether  or  not  he  knows  that  the  speed  is  so  high. ' '  ^^  On  the 
other  hand  it  was  held :  The  mere  fact  that  a  street-car  is  moving 
slowly  when  a  man  attemps  to  get  on  does  not  make  him  guilty 
of  negligence  as  matter  of  law,  but  the  question  is  for  the  jury.^^ 

''It  is  not  under  all  circumstances  negligence  as  matter  of 
law,"  say  the  New  York  court,  "for  a  person  to  get  upon  a 
street-ear  while  it  is  in  motion.  In  exceptional  cases  it  may  be 
so,  but  ordinarily  it  is  a  question  for  the  jury. "  ^^  In  such  cases 
we  must  apply  the  old  test:  is  the  act  so  obviously  hazardous 
that  a  man  of  ordinary  prudence  would  not  attempt  it?  If  so, 
it  is  negligence. 

§  662.  Same  subject. — Numerous  cases  might  be  cited  where 
the  courts  have  held  the  acts  of  passengers  and  persons  seeking 
damages  in  personal-injury  cases  to  be  as  matter  of  law  contrib- 
utory negligence,  or  so  clearly  negligent  that  no  recovery  could 
be  had ;  as  where  passengers  have  alighted  upon  the  side  of  the 
train  where  there  is  no  platform  instead  of  upon  the  platform; 
where  passengers  in  getting  off  were  injured  by  a  passing  train 

all  the  circumstances  of  the  case;  3i  Masterson  v.  Street  Car  Co., 

as  upon  the  rapidity  of  the  mo-  88  Ga.  436. 

tion,  whether  it  is  night  or  day,  32  Morrison   v.    Street   Car   Co., 

whether  the  place  is  favorable  or  130  N.  Y.  166. 
otherwise,    and    the    like.     Little  33  Ependorff  v.   Street  Car  Co., 

Rock  M.  Atkins,  46  Ark.  423;    St.  69   N.    Y.    195,   25   Am.   Rep.    171. 

Louis,  etc.  R.   Co.  v.   Cantrel,  37  See  collection  of  cases  in   notes 

Ark.  526;   Pa.  etc.  Ry.  Co.  v.  Ma-  38  U  R.  A.  786;   Chicago  Ry.  Co. 

rion,  123  Ind.  415;  Weber  v.  Rail-  v.   Mumford,   97  111.   560;    Connor 

way  Co.,  100  Mo.  194;  Rickets  v.  v.  Citizens'  Ry.  Co.,  150  Ind.   62, 

Railway   Co.,   85  Ala.   600;    Mich.  55  Am.  Rep.  177;  Stager  v.  Ridge, 

Cent.  R.  Co.  v.  Coleman,  28  Mich.  etc.  Ry.  Co.,  117  Pa.  St.  70;  Moy- 

440;    Graham  v.   Railway  Co.,   39  Ian  v.  Second  Avq.  R.  Co.,  128  N. 

Fed.    596;    Files   v.    Railway   Co.,  Y.  583. 
149  Mass.  204;   Smith  v.  Railway 
Co.,  55  Iowa,  33. 


736  CARRIERS    OV   PASSENGERS.  [§    663. 

or  car;  where  persons  have  fallen  from  the  top  of  freight  cars 
where  they  voluntarily  sought  to  obtain  a  ride,  and  without  per- 
mission ;  or  where  the  injury  was  received  while  riding  upon  the 
engine  without  permission;  or  in  a  place  upon  a  train  where  the 
passenger  was  not  allowed  to  be,  by  reason  of  exposing  to  danger 
a  part  of  his  person,  as  by  thrusting  his  head  out  of  the  open 
window  while  the  train  is  running  at  a  high  rate  of  speed,  or 
projecting  his  arms  or  limbs  from  the  car,  or  hanging  over  the 
side  of  the  steps  or  platform  of  the  car  of  a  running  train,  or 
crawling  under  the  car  of  a  train  standing  upon  the  track — in 
short,  to  do  that  which  ordinarily  prudent  men  without  dissent 
would  consider  extra-hazardous.^* 

§  663.  When  excused. — The  law  sometimes  has  regard 

for  the  frailties  of  human  nature  and  often  regards  the  trying 
situation  of  persons  who  may  be  said  to  be  guilty  of  carelessness 
while  endeavoring  to  extricate  themselves  or  those  depending 
upon  them  from  trying  dilemmas.  As  where  a  mother  accom- 
panied by  three  children,  on  arriving  at  an  intermediate  station, 
proceeded  to  alight  with  them;  two  of  the  children  had  left  the 
car,  and  while  the  plaintiff  was  still  upon  the  train  the  car 
started,  when  she  sprang  to  the  platform  on  which  one  of  the 
children  had  fallen  prostrate,  and  was  injured.  It  was  held 
that  this  was  not  such  negligence  as  would  pr-ivent  her  from  re- 
covering damages  for  injuries  sustained  by  the  premature  start- 
ing of  the  train.  The  court  say:  "that  it  is  wrong  for  a  party 
to  attempt  to  leave  cars  while  they  are  in  motion  is  an  abstract 
truth,  that  counsel  complain  of  the  court  for  misapplying  here. 
It  is  one  thing  to  define  a  principle  of  law  and  a  very  different 
matter  to  apply  it  well.  The  rights  and  duties  of  parties  grow 
out  of  the  circumstances  in  which  they  are  placed. ' '  ^^  The  rule 
has  been  held  to  be,  if  a  passenger  is  placed  in  a  position  of  peril 
by  the  negligence  of  the  carrier,  so  that  he  is  compelled  to  choose 
between  the  two  evils  of  jumping  from  the  moving  car  or  being 

34  Walker  v.  Vicksburg  R.  Co.,  54  Wis.   610;    New  York,   etc.   R. 

41  La.  Ann.  795,  7  L.  R.  A.  Ill;  Co.    v.   Enches,    127    Pa.    St.    316; 

Richmond    v.    Second    Ave.    Rail-  Porter  v.   Railway   Co.,   80   Mich, 

road    Co.,    76   Hun    (N.    Y.),    233;  156;    Watson   v.   Railway    Co.,   81 

Sharkey  v.  Lake  Roland  R.  Co.,  84  Ga.  476;    Lake  Shore,  etc.  Co.  v. 

Md.  163;    Offerman  v.   Union  De-  Banks,   47   Mich.  470;    Richmond, 

pot    Co.,    125    Mo.    48;    Dasch    v.  etc.  Co.  v.  Scott,  88  Va.  968. 
North  Chicago,  etc.  R.  Co.,  40  111.  35  Pennsylvania  Ry.   Co.   v.   Kil- 

App.   583;    Jewel  v.   Railway   Co.,  gore,  32  Pa.  St.  292. 


§  664.] 


PASSENGER    CARRIER'S    LIABILITY, 


737 


injured  by  the  other  peril,  it  will  not  be  negligence  for  him  to 
jump.^®  As  where  a  passenger  is  induced  to  jump  off  the  train 
by  an  impending  collision,  he  will  not  be  held  guilty  of  contrib- 
utory negligence.^''  And  this  is  held  to  be  the  rule  even  though 
no  injury  would  have  befallen  the  person  if  he  had  not  made  the 
attempt  to  escape  the  threatened  danger.  The  question  in  such 
a  case  is  not  what  a  prudent  person  under  ordinary  circum- 
stances would  have  done,  for  cool  presence  of  mind  could  not  be 
expected  under  such  circumstances,  and  the  law  takes  into  con- 
sideration the  frailty  of  human  nature  and  considers  the  emer- 
gency in  which  the  person  is  placed,  the  excitement  and  the  in- 
fluence of  fear  and  danger  which  has  taken  possession  of  him.^^ 
§  664.  Failure  to  perform  contract  of  carriage  within  stipu- 
lated or  reasonable  time. — There  is  an  implied  undertaking  on 
the  part  of  the  carrier  that  he  will  at  least  carry  the  passenger 
to  the  point  desired  upon  its  line  within  a  reasonable  time,  where 
the  time  of  departure  and  arrival  is  more  or  less  definitely  fixed 
by  the  published  time-tables  or  schedules  of  the  carrier  com- 


30  Twomley  v.  Cent.  Park  R. 
Co.,  69  N.  Y.  158,  25  Am.  Rep. 
162. 

37  Heath  v.  Glen  Falls  Street 
Car  Co.,  90  Hun  (N.  Y.),  560; 
Dimmey  v.  Wheeling  R.  Co.,  27 
W.  Va.  32,  55  Am.  Rep.  292; 
Washington,  etc.  R.  Co.  v. 
Hickey,  5  App.  D.  C.  436.  The 
fact  that  a  woman  gets  off  a  mov- 
ing car  upon  its  turning  into  the 
bams,  upon  refusal  to  stop  to  let 
her  off,  will  not  prevent  her  re- 
covery for  an  injury  caused 
thereby,  if  she  had  been  subjected 
to  insult  upon  being  carried  into 
the  barns  upon  a  previous  occa- 
sion and  thought  that  her  only 
way  to  escape  the  same  treatment 
was  to  leave  the  car.  Ashton  v. 
Detroit  City  R.  Co.,  78  Mich.  587; 
and  see  notes  38  L.  R.  A.  786. 

38  Adams  v.  Hannibal,  etc.  Co, 
74  Mo.  553,  41  Am.  Rep.  333; 
Beach,  Contributory  Negligence, 
44;  Galena,  etc.  R.  Co.  v.  Fay,  16 
111.    558;    Kleiber    v.    People's   R. 

47 


Co.,  107  Mo.  240,  14  L.  R.  A.  613. 
Held,  "to  jump  from  a  street-car 
which  is  about  to  cross  a  railroad 
track  is  not  contributory  negli- 
gence as  matter  of  law  sufficient 
to  defeat  an  action  for  injuries 
thereby  received,  although  such 
action  proved  to  be  wrong,  where 
the  view  of  the  track  was  en- 
tirely cut  off  until  the  crossing 
was  reached,  when  an  engine  was 
seen  approaching  only  a  short 
distance  away,  and  the  gate- 
keeper, who  appeared  greatly 
confused,  was  lowering  the  gates 
so  as  to  stop  the  street-car,  di- 
rectly on  the  track,  while  the  ac- 
tions of  the  passengers  and  by- 
standers indicated  an  apprehen- 
sion of  imminent  peril."  Wash- 
ington, etc.  Co.  v.  Hickey,  5  App. 
D.  C.  436;  Houston,  etc.  Co.  v. 
Norris,  41  S.  W.  708;  Citizens,' 
etc.  R.  Co.  V.  Hoffbauer,  23  Ind. 
App.  614,  56  N.  E.  54,  citing  long 
list  of  authorities. 


738  CARRIERS    OF    PASSENGERS.  [§    664. 

pany.  Upon  these  time-tables  the  passenger  has  a  right  to  rely, 
to  the  extent,  at  least,  that  the  carrier  will  make  good  the  repre- 
sentations contained  in  them  if  he  can  do  so  by  reasonable  ef- 
forts. He  does  not  guarantee  to  the  passenger  that  he  will  start 
his  vehicles  on  the  time  mentioned  in  the  time  tables ;  he  may  be 
reasonably  detained;  but  he  must  as  nearly  as  he  can,  and  con- 
sistent with  the  best  interest  of  the  traveling  public  and  his  own 
business,  fulfill  the  representations  he  so  makes.  And  so  where 
a  passenger  who  had  engaged  transportation  from  New  York  to 
San  Francisco  was  unreasonably  detained  at  Panama  by  the 
default  of  the  transportation  company,  and  was  thereby  specially 
damaged,  it  was  held  that  he  might  maintain  damages  from  the 
carrier.^^  These  actions  are  sustained  upon  the  theory  that  the 
carrier  is  guilty  of  negligence,  and  it  is  the  damage  arising  from 
the  unreasonable  delay  of  the  carrier  that  may  be  recovered; 
and  so  it  must  necessarily  follow  that  if  the  carrier  company  has 
done  all  that  reasonable  care  and  skill  could  do  to  transport  the 
passenger  punctually,  and  the  delay  cannot  be  attributed  to  any 
negligence  npon  his  part,  the  carrier  would  not  be  liable.  It 
has  been  said  that  "the  publication  of  a  time-table  in  common 
form  imposes  upon  a  railroad  company  the  obligation  to  use  due 
care  and  skill  to  have  the  trains  arrive  and  depart  at  the  precise 
moment  indicated  in  the  time-table;  but  it  does  not  import  an 
absolute  and  unconditional  engagement  for  such  arrival  and  de- 
parture, and  does  not  make  the  company  liable  for  want  of 
punctuality  which  is  not  attributable  to  their  negligence."*" 

39Buskirk  v.  Roberts,  31  N.  Y.  H.  596.     In  Savannah,  etc.  R.  Co. 

661.    In  Sears  v.  Eastern  Ry.  Co.,  v.  Bonaud,  58  Ga.  180,  it  was  held 

14  Allen,   433,  it  was  held  "that  that   "a   railroad   company  which 

railroad    corporations,    by    adver-  fails  to  run  a  train  according  to 

tising  the  hours  when  trains  will  its     published     schedule,     unless 

start,  agree  with  holders  of  tick-  prevented  by  some  valid  reason, 

ets  that  trains  shall  start  at  the  is   liable   to   a   person   sustaining 

hours  named,  but  with  an  implied  injury  from  such  failure  for  the 

reservation   of   power    to   change  damages    actually    sustained     by 

the  hours  upon  giving  reasonable  him  as  the  direct  and  necessary 

notice."  result  thereof." 

40  Gordon  V.  Manchester,  52  N. 


CHAPTER  IV. 


LIMITATION  OF  LIABILITY. 


§  665.  Three   classes    of   holdings 
by  the  courts. 

666.  The    first     class:     Carrier 

cannot  limit  liability 
where  damage  results 
from  his  own  or  serv- 
ant's negligence. 

667.  The   second   class:    Carrier 

can  limit  liability  even 
though  damage  the  re- 
sult of  his  own  or  serv- 
ant's negligence. 


668.  The  third  class:  May  limit 

for    negligence    but    not 
for  gross   negligence. 

669.  The  weight  of  authority. 

670.  Free  passes — Limitation  of 

liability   for   injuries    to 
persons  riding  upon. 

671.  Limitations    growing    out 

of  that  which  is  incident 
to  the  carriage. 


§  665.  Three  classes  of  holdings  by  the  courts. — That  the 
carrier  of  passengers  may  to  some  extent  limit  his  liability  for 
injuries  or  damages  which  are  not  the  resiult  of  his  own  negli- 
gence or  the  negligence  of  his  servants  seems  to  be  conceded; 
but  where  the  injury  or  damage  is  the  result  of  the  carrier's 
own  negligence  or  that  of  his  servants,  there  is  irreconcilable 
conflict  in  the  rulings  of  the  courts.  The  rulings  of  the  several 
courts  upon  this  subject  may  be  divided  into  three  distinct 
classes,  or  groups,  all  dividing  upon  the  question  of  negligence. 
The  first  class  holds  that  the  carrier  cannot  limit  his  liability 
when  the  damage  or  injury  results  from  his  own  or  his  servant's 
negligence.  The  second  class  is  directly  opposed  to  the  first, 
holding  that  by  special  contract  the  carrier  can  limit  his  liability 
even  to  the  extent  of  excusing  himself  for  damage  or  injury  re- 
sulting from  his  own  negligence  or  that  of  his  servants.  The 
third  class  holds  that,  while  the  carrier  may  limit  his  liability 
for  negligence,  he  cannot  limit  such  liability  if  the  negligence  is 
gross ;  in  other  words,  that  he  will  be  required  to  exercise  at  least 
ordinary  diligence. 

§  666.  The  first  class:  Carrier  cannot  limit  liability  where 
damage  results  from  his  own  or  servant's  negligence. — The 
courts  holding  to  this  doctrine  base  their  opinion  upon  thetheorj' 


740  CARRIERS    OF   PASSENGERS.  [§    666. 

that  the  common  carrier  is  in  the  exercise  of  his  duties  and 
privileges  a  quasi-puhlic.  officer;  that  the  carrier  and  passenger 
who  seek  to  enter  into  a  contract  limiting  the  liability  are  not 
the  only  parties  interested,  but  that  the  public  generally  are 
affected;  and  that  to  be  exonerated  from  the  exercise  of  that 
high  degree  of  diligence  that  attaches  to  the  common  carrier  of 
passengers  by  a  contract  between  the  carrier  and  the  passenger 
would  be  to  disregard  the  public  interest  and  the  public  de- 
mands, and  would  therefore  be  in  violation  of  public  policy,  and 
for  that  reason  such  contracts  would  be  void.  As  was  said  in  a 
recent  case  respecting  the  duty  of  a  common  carrier,  ''the  duty 
to  use  extraordinary  diligence  to  protect  the  lives  of  his  pas- 
sengers cannot  be  waived. ' '  ^  And  so  where  a  common  carrier 
sought  to  relieve  himself  from  liability  for  injury  received  by  a 
drover  riding  upon  a  return  pass  without  paying  fare,  the  con- 
tract stipulating  that  in  consideration  of  such  passage  the  drover 
assumed  all  risk,  the  court  said:  "It  is  very  well  established  in 
this  state  that  a  contract  for  such  an  exemption  from  liability 
by  a  common  carrier  is  void  as  against  public  policy.  The  de- 
fendant could  not  by  any  agreement  however  plain  and  explicit 
wholly  relieve  itself  from  liability  for  injuries  caused  by  its 
negligence  or  the  negligence  of  its  agents  or  employees. "  ^  A 
leading  case  upon  this  subject,  and  one  which  has  been  often 
followed  in  the  United  States  supreme  court  and  in  the  state 
courts,  is  that  of  Railroad  Co.  v.  LocJciiood,^  where  the  supreme 
court  of  the  United  States  discuss  fully  this  question.  In  Penn- 
sylvania it  seems  to  be  settled  by  a  long  course  of  decisions  that 
a  common  carrier  of  passengers  cannot  limit  his  liability  so  as  to 
exonerate  himself  from  injuries  occurring  from  his  own  negli- 
gence or  that  of  his  servants.  In  Famham  v.  Railway  Go.*"  the 
court  say :  ' '  The  doctrine  is  firmly  settled  that  a  common  carrier 
cannot  limit  his  liability  so  as  to  cover  his  own  or  his  servant's 
negligence."  And  the  Indiana  couri:  say:  "The  law  will  not 
allow  the  carrier  thus  to  abandon  his  obligation  to  the  public, 
and  hence  all  stipulations  which  amount  to  a  denial  or  repudia- 
tion of  duties  which  are  of  the  very  essence  of  his  employment 

1  Cent.  Ga.  Ry.  Co.  v.  Lippman,  627;    Inman   Co.   v.    Railway   Co., 
110  Ga.  665,  36  S.  E.  202.  128    U.     S.    128;     Liverpool,    etc. 

2  Davis  V.  Chicago,  etc.  Ry.  Co.,  Steam   Co.  v.   Insurance  Co.,   12& 
93  Wis.  470,  33  L.  R.  A.  654.  U  S.  397. 

3  17  Wall.  (U.  S.)  357,  21  L.  Ed.  *  55  Pa.  St.  62. 


§    667.]  LIMITATION    OF   LIABILITY.  741 

will  be  regarded  as  unreasonable,  contraiy  to  public  policy,  and 
therefore  void.^ 

§  667.  The  second  class:  Carrier  can  limit  liability  even 
though  damage  the  result  of  his  own  or  his  servant's  negli- 
gence.— The  second  class  of  decisions  is  directly  opposed  to  the 
firsit,  holding  that  the  carrier  may,  by  special  contract,  limit  his 
liability  where  the  damage  complained  of  was  the  result  of  his 
own  negligence  or  that  of  his  servants,  contending  that  this  rule 
in  no  way  does  violence  to  public  policy,  for  the  reason  that  the 
contract  is  one  which  interests  no  one  except  the  passenger  and 
the  carrier;  that  it  is  a  subject-matter  in  which  no  other  inter- 
ests are  involved  except  the  interests  that  are  controlled  and 
possessed  entirely  by  the  contracting  parties.  This  doctrine  is 
fully  discussed  in  the  case  of  Trenton,  etc.  B.  Co.  v.  Guarcmtors, 
etc.  Co.^  This  case  was  brought  upon  a  written  contract  where- 
by the  defendants  indemnified  the  railroad  company  against  lia- 
bility for  injury  to  or  death  of  persons  by  casualties  occurring 
in,  upon  or  about  their  railroad,  etc.  The  question  as  to  the 
validity  of  the  contract  was  before  the  court.  The  court  siay: 
"The  proposition  which  one  would  assert  who  contested  the 
validity  of  such  a  contract  would  obviously  be  this,  namely,  that 
a  contract  whereby  a  common  carrier  of  passengers  is  to  be  in- 
demnified against  damages  which  he  was  required  to  pay  for 
personal  injuries  occasioned  by  his  negligence  or  by  the  negli- 
gence of  his  agent  is  contrary  to  public  policy,  and  therefore 
unenforceable.  It  is  admittedly  difficult,  if  not  impossible,  to 
formulate  a  satisfactory  statement  of  what  is  meant  by  the  words 
'public  policy.'  .  .  .  The  only  reason  which  I  find  possible 
to  conceive  to  be  capable  of  being  urged  in  support  of  the  propo- 
sition that  the  contract  before  us  in  this  case  is  contrary  to  pub- 

5  Louisville,   etc.   Co.  v.  Faylor,  S    Div.  Ohio) ;  Louisville,  etc.  Co. 

126  Ind.  126;  Ind.  Cent.  Ry.  Co.  v.  v.    Keifer,    146   Ind.    21;    Railway 

Mundy,  21  Ind.  48;  Ohio,  etc.  Ry.  Co.   v.  McLaughlin,   73   Fed.   519; 

Co.  V.  Nickless,  71  Ind.  271;   Gulf,  Tibby  v.  Railway  Co.,  82  Mo.  292; 

etc.  Co.  V.  McGown,  65  Tex.  640;  Jones  v.  Railway  Co.,  125  Mo.  666, 

Mo.   Pac.  Ry.  Co.  v.  Iby,  71  Tex.  26   L.   R.   A.   718;    Cleveland,   etc. 

409,    1    L.    R.    A.    500;    Carroll    v.  R.   Co.   v.  Curran,  19   Ohio   St.   1, 

Railway  Co.,  88  Mo.  239;  Jacobus  2  Am.  Rep.  362;  111.  Cent.  Ry.  Co. 

V.  Railway  Co.,  20   Minn.   125,   18  v.  Crudup,  63  Miss.  291. 
Am.  Rep.  360;    Bryan  v.  Railway  6  60  N.  J.  Law,  246,  44  L.  R.  A. 

Co.,   32   Mo.   App.    228;    Voight  v.  213. 
Railway   Co.,    79   Fed.    561    (C.   C. 


742  CARRIERS  OF  PASSENGERS.  [§  667. 

lie  policy  is  that  the  indemnity  thereby  provided  for  a  common 
carrier  of  passengers  may  tend  to  render  him  Jess  careful  in  the 
performance  of  his  duty  to  his  passengers  than  he  otherwise 
would  be.  It  is  obvious  that  such  is  not  the  purpose  of  the  con- 
tract for  indemnity.  The  insurer  does  not  contemplate  the  re- 
laxation of  the  carrier's  vigilance,  which  would  tend  to  throw 
additional  liability  upon  him.  The  insurer  is  held  to  the  per- 
formance of  his  duty  of  vigilance  both  by  his  liability,  notwith- 
standing the  indemnity,  and  by  the  fact  that  the  vigilant  carrier 
would  obtain  better  terms  in  making  the  contracts  of  insurance. 
It  is  further  obvious  that  if  a  contract  indemnifying  the  com- 
mon carrier  of  passengers  against  liability  arising  from  his  neg- 
ligence tends  to  a  relaxation  of  vigilance  inimical  to  the  public 
interest,  so  a  contract  indemnifying  a  common  carrier  of  goods 
against  the  consequences  of  his  negligence  must  have  the  same 
effect  and  be  obnoxious  to  the  rule  avoiding  contracts  contrary 
to  public  policy.  Yet  it  now  seems  well  settled  that  a  common 
carrier  of  goods  may  enforce  contracts  of  insurance  on  goods 
carried  against  all  losses,  including  those  occasioned  by  his  negli- 
gence or  the  negligence  of  his  servants.  .  .  .  The  result  is 
that  the  reserved  question  must  be  answered  in  favor  of  the 
validity  of  the  contract  upon  which  this  action  is  founded." 

The  leading  case  in  this  class  is  one  from  the  New  York  court — 
Bissell  V.  Railway  Co.''  In  this  case  the  court  say:  "If  he  (the 
passenger)  may  by  contract  assume  certain  risks  in  considera- 
tion of  riding  free,  why  may  he  not  make  a  contract  to  assume 
the  same  risks  in  consideration  of  being  carried  at  half  price, 
etc.?  When  we  once  hold  that  assuming  these  risks  is  within 
his  power  as  matter  of  contract,  the  court  has  no  power  to  inter- 
fere with  his  contract  on  the  score  of  quantum  of  consideration, 
or  on  any  ground  but  illegality  of  consideration. ' '  And  in  this 
case  the  court  further  held  "that  a  common  carrier,  in  consider- 
ation of  an  abatement,  in  whole  or  in  part,  of  his  legal  fare  may 
lawfully  contract  with  a  passenger  that  the  latter  will  take  upon 
himself  the  risk  of  damage  from  the  negligence  of  agents  and 
servants  for  which  the  carrier  would  otherwise  be  liable;  that 
public  policy  is  satisfied  by  holding  a  railroad  corporation  bound 
to  take  the  risk  when  the  passenger  chooses  to  pay  the  fare  estab- 
lished by  the  legislature.     If  he  voluntarily  and  for  any  valu- 

-  25  N.  Yi.  442. 


§    667.]  LIMITATION    OF    LIABILITY.  743 

able  consideration  waives  the  right  to  indemnity,  the  contract  is 
binding."  And  where  the  plaintiff,  "while  traveling  on  a  regu- 
lar train  on  defendant's  road,  on  a  free  pass,  was  injured  by  a 
collision  caused  by  defendant's  negligence,  and,  where  upon  the 
pass  there  was  an  indorsement  to  the  effect  that,  in  consideration 
of  receiving  it,  the  holder  assumed  all  risks  of  accident  and 
agreed  that  the  company  should  'not  be  held  liable  under  any 
circumstances,  whether  by  negligence  of  their  agents  or  other- 
wise,' for  injury  to  his  person  or  property,  and  that  in  the  use 
of  the  pass  he  would  'not  consider  the  compasy  as  a  common 
carrier  or  liable  as  such, '  and  where  in  an  action  to  recover  dam- 
ages for  the  injury  it  appeared  that  the  plaintiff  had  purchased 
a  ticket  entitling  him  to  a  seat  in  the  drawing-room  car  upon  the 
train,  from  the  drawing-room  conductor,  and  it  was  stated  in  the 
check  given  for  the  seat  that  it,  'with  passage  ticket  or  fare,' 
would  be  taken  up  by  the  train  conductor,  it  was  held  that  '  this 
did  not  make  plaintiff  a  passenger  for  hire,  and  did  not  have  the 
effect  to  annul  or  vary,  for  the  trip,  the  contract  made  by  the 
pass  and  its  indorsement;  that  assuming  such  a  purchase  of  a 
seat  ticket  has  the  same  force  and  effect  as  if  purchased  from 
the  train  conductor. '  .  .  .  And  so  long  as  the  pass  was  used 
to  siecure  transportation  did  not  in  any  way  affect  the  validity 
of  the  agreement  expressed  therein."  *  In  Massachusetts  it  was 
held  that  "an  agreement  by  one  who  accepts  a  railroad  pass 
purely  as  a  gratuity,  that  he  will  assume  all  risks  of  accident  of 
every  name  and  nature,  is  not  against  public  policy,  and  will 
prevent  a  recovery  by  him  for  injuries  occasioned  by  the  negli- 
gence of  the  railroad  company's  servants."  ^  This  appears  to  be 
the  rule  both  in  England  and  in  the  Canadian  courts.^"  The 
supreme  court  of  Maine  have  also  held  to  this  doctrine,  and  in 
Rogers  v.  Steamboat  Co}'^  it  was  said  that  "a  condition  in  a  free 
pass  that  the  passenger  will  assume  all  risks  of  personal  injury 
is  not  against  public  policy." 

8  XJlrich  V.  Railway  Co.,  108  N.  Div.    212 ;    McCawley    v.    Railway 

Y.  80.  Co.,  L..  R.  10  Q.  B.  Div.  57. 

oQuimby    v.    Railway    Co.,    150  n  86  Me.  261,  25  L.  R.  A.  491; 

Mass.  365,  5  L.  R.  A.  846.  Griswold  v.  Railway  Co.,  53  Conn. 

10  Southerland  v.  Railway  Co.,  7  371;   Wells  v.  Railway  Co.,  24  N. 

U.  a  C.  P.  409;   Hall  v.  Railway  Y.   181;    Muldoon   v.   Seattle,   etc. 

Co.,  L.  R.  10  Q.  B.  Div.  437;  Gal-  Co.,  7  Wash.  529;  Kirney  v.  Rail- 

lin  V.  Railway  Co.,  L.  R.  10  Q.  B.  way  Co.,  34  N.  J.  L.  513;  Hosmer 


744  CARRIERS    OF   PASSENGERS.  [§    670. 

§  668.  The  tiiird  class :  May  limit  for  negligence  but  not  for 
gross  negligence. — The  third  class  of  authorities  holds  that  the 
common  carrier  of  passengers  may  limit  his  liability  for  injuries 
resulting  from  the  negligence  of  himself  or  sei^vants  if  such  neg- 
ligence is  not  gross  negligence,  but  that  for  gross  negligence  he 
must  be  held  liable.^^ 

§  669,  The  weight  of  authority. — It  is  difficult  to  determine 
where  the  weight  of  authority  rests,  but  it  seems  to  be  conceded 
by  most  of  the  authorities  upon  this  subject  that  the  weight  of 
authority  in  this  country  is  that  a  common  carrier  of  passengers 
cannot,  by  special  contract  or  otherwise,  limit  his  liability  for 
injury  or  damage  resulting  from  the  negligence  of  himself  or  his 
servants;  that  such  a  contract  would  be  void.  Both  reason  and 
humanity  would  dictate  that  this  should  be  the  law.  Nothing 
is  held  so  important  and  so  sacred  in  the  law  as  the  protection 
of  life  and  limb.  One  may  barter  away  his  property,  but  the 
law  would  not  permit  him  to  put  his  own  life  in  the  scale ;  he  may 
possess  it  and  protect  it,  but  to  destroy  it  is  a  crime.  It  is  there- 
fore difficult  to  see  upon  what  principle  one  engaged  in  so  dan- 
gerous and  hazardous  a  business  as  that  of  a  common  carrier  of 
passengers  can  be  relieved  by  contract  from  the  results  of  his 
own  or  his  servant's  negligence  that  often  involves  the  loss  of 
life,  even  though  such  contract  is  based  upon  a  valuable  consid- 
eration, and  still  more  difficult  when  the  injuries  are  the  direct 
result  of  gross  negligence  on  the  part  of  himself  or  his  servants; 
and  so  it  would  seem  that  reason  and  justice  and  public  policy 
would  suggest  that  the  carrier  cannot  so  limit  his  liability  by 
contract. 

§  670.  Free  passes — Limitation  of  liability  for  injuries  to 
persons  riding  upon. — There  has  been  a  great  deal  of  discus- 
sion and  a  variety  of  holdings  in  the  courts  as  to  the  validity  of 
contracts  between  the  carrier  company  and  persons  riding  upon 
free  passes  over  their  road.  It  is  somewhat  difficult  to  deter- 
mine just  where  the  weight  of  authority  rests,  as  some  of  the 
strongest  courts  in  the  Union  differ  in  their  opinion  upon  this 

V.    Railway    Co.,    156    Mass.    506;  Beebe,  69  111.  App.  363;  111.  Cent. 

Bates  V.  Railway  Co.,  147  Mass.  R.   Co.   v.   Read,   37   111.   484;    To- 

255;    Doyle    v.    Railway    Co.,    162  ledo,  etc.  Co.  v.  Railway  Co.,  85 

Mass.  66;  S.  C,  166  Mass.  492.  111.  80,  28  Am.  Rep.  615;  Annis  v. 

12  Railway  Co.  v.  Hawks,  36  111.  Railroad  Co.,  67  Wis.  46. 
App.    327;    111.    Cent.    R.    Co.    v. 


§  670.] 


LIMITATION    OF    LIABILITY. 


745 


subject;  but  in  those  courts  where  it  has  been  held  that  such 
contracts  are  valid  and  that  the  passenger  cannot  recover,  even 
though  the  injury  is  the  result  of  the  negligence  of  the  carrier 
or  his  servants,  some  modification  has  been  made  where  the  pass 
was  issued  to  the  passenger  for  a  valuable  consideration,  either 
direct  or  indirect;  as,  for  example,  a  pass  given  to  a  drover  in 
order  that  he  may  accompany  the  stock  shipped  by  him  over  the 
road,  or  where  the  pass  is  given  to  one  who  is  engaged  to  per- 
form a  service  for  the  company,  or  where  the  journey  of  the 
passenger  is  directly  or  indirectly  for  the  benefit  of  the  com- 
pany ;^^  but  it  would  seem  that  the  weight  of  authority  is  that 


13  In  Doyle  v.  Railway  Co.,  166 
Mass.  492,  the  plaintiff's  intes- 
tate was  employed  by  the  rail- 
road company  as  a  clerk  in  its 
freight  department;  on  the  occa- 
sion of  his  injury  he  was  travel- 
ing upon  a  pass  going  from  the 
city  of  Boston,  where  he  was  em- 
ployed, to  his  home  in  Waltham, 
as  he  had  been  in  the  habit  of 
doing  Saturday  afternoons  at  the 
close  of  his  week's  work.  On  tne 
back  of  the  ticket,  or  pass,  upon 
which  the  intestate  was  riding 
were  the  following  conditions: 
^'The  person  accepting  this  free 
ticket,  thereby,  and  in  considera- 
tion thereof,  assumes  all  risk  of 
accidents,  and  expressly  agrees 
that  the  company  is  not  a  com- 
mon carrier  in  respect  to  him, 
and  shall  not  be  liable  under  any 
circumstances,  whether  of  negli- 
gence of  its  agents  or  otherwise, 
for  injury  to  the  person,  or  for 
loss  or  injury  to  the  property  of 
the  passenger  using  this  ticket." 
The  case  was  twice  before  the 
court  and  was  first  considered  in 
162  Mass.  66.  The  court  in  its 
opinion  say:  "We  assume  that  if 
the  ticket  had  been  a  gratuity, 
the  contract  on  the  back  of  it 
would  have  precluded  a  recovery, 
and  that  it  would  have  made  no 


difference  that  the  negligence 
was  gross.  How  far  common  car- 
riers may  go  in  contracting  to  be 
relieved  from  the  consequences 
of  their  own  negligence  and  that 
of  their  servants  is  a  matter  on 
v/hich  different  courts  have  taken 
different  views,  and  on  which,  in 
some  instances,  courts  within  the 
same  jurisdiction  have  expressed 
themselves  differently  at  differ- 
ent times.  It  is  clear  that  they 
have  not  an  unlimited  power  of 
contract  in  this  respect.  A  pri- 
vate individual  may  refuse  to 
transport  a  person  from  one  place 
to  another  imless  the  latter  will 
agree  to  assume  all  risk  of  in- 
jury. But  railroad  corporations 
would  have  no  right  to  insist  as 
a  condition  of  carrying  a  passen- 
ger that  he  should  make  such  a 
contract.  This  arises  out  of  the 
nature  of  the  service  which  they 
undertake.  .  .  .  Although  the 
liability  of  a  carrier  of  merchan- 
dise is  that  of  an  insurer,  and  the 
liability  of  a  carrier  of  passengers 
is  measured  by  the  highest  de- 
gree of  care  which  human  fore- 
sight will  reasonably  admit  of. 
we  see  no  valid  reason  for  hold- 
ing that  in  the  former  case  the 
carrier  cannot  be  exempted  from 
his   own   negligence,  and   that  in 


746 


CARRIERS    OF    PASSENGERS. 


[§   670. 


the  railroad  company  may  limit  in  a  degree  their  liability  where 
a  gratuitous  pass  is  given  to  the  passenger  upon  which  there  ia 
a  limitation  w'ritten  and  signed  by  the  passenger  that  he  as- 
sumes all  risks  of  accident,  and  that  the  carrier  company  shall 
not  be  liable  under  any  circumstances,  whether  of  negligence  by 
their  agents  or  otherwise,  but  that  there  can  be  no  limitations 
even  in  such  cases  to  the  extent  of  excusing  the  carrier  for  gross 
negligence  of  himself  or  his  servants.  Some  of  the  courts,  in- 
cluding some  of  the  most  learned,  however,  have  held  that  these 
limitations  are  valid  and  are  to  be  held  as  binding  and  effective 
to  the  full  measure  of  their  language;  but  notwithstanding  this 
it  is  difficult  to  see  how  such  contracts  are  not  in  violation  of 
public  policy.^* 


the  latter  he  may."  Quimby  v. 
Railway  Co.,  150  Mass.  365;  Rog- 
ers V.  Railway  Coi,  86  Me.  261; 
Griswold  v.  Railway  Co.,  53 
Conn.  371.  In  Railway  Co.  v.  Ste- 
vens, 95  U.  S.  655,  the  plaintiff, 
who  was  injured,  was  performing 
some  service  for  the  railroad 
company  and  riding  upon  a  free 
pass  with  the  usual  conditions 
exempting  the  company  upon  it; 
tlie  court  held  that  the  pass  was 
given  for  a  consideration,  and 
that  therefore  he  was  entitled  to 
the  privileges  of  a  passenger,  and 
that  the  acceptance  of  a  pass 
with  the  conditions  exempting 
the  company  from  liability  would 
not  estop  him  from  recovering 
damages  for  the  injury. 

i*A  contract  exempting  a  car- 
rier company  from  liability  for 
injuries  to  passengers,  except  in 
cases  where  the  injury  is  the  re- 
sult of  gross  negligence  of  its 
employees,  held  to  be  void.  Rail- 
way Co.  V.  Beebe,  69  111.  App.  363 ; 
Railway  Co.  v.  Keefer,  146  Ind. 
21;  Railway  Co.  v.  Read,  37  111. 
484;  approved  in  Railway  Co.  v. 
Beggs,  80  111.  80,  28  Am.  Rep.  613. 
And  in  Railway  Co.  v.  Hawks,  36 
111.  App.  327,  it  was  held  that  a 


stipulation  in  a  free  pass  exempt- 
ing a  railroad  company  from  lia- 
bility for  injuries  resulting  from 
negligence,  except  where  the  neg- 
ligence is  gross,  of  itself  or  serv- 
ants, was  held  valid.  Railroad 
company  held  for  gross  negligence 
notwithstanding  contract  excus- 
ing from  negligence.  Indiana 
Cent.  Ry.  Co.  v.  Mundy,  21  Ind. 
48,  83  Am.  Dec.  329.  Company 
held  for  its  negligence  notwith- 
standing contract.  See  Rose  v. 
Railway  Co.,  39  Iowa,  246;  Brush 
V.  Railway  Co.,  43  Iowa,  554.  Con- 
ditions exempting  railroad  com- 
pany held  void.  Jacobus  v.  Rail- 
way Co.,  20  Minn.  125,  18  Am. 
Rep.  360;  Bryan  Vi.  Railway  Co., 
32  Mo.  App.  228;  Railway  Co.  v. 
Henderson,  51  Pa.  St.  315;  Rail- 
way Co.  V.  Bausch,  7  Atl.  731; 
Annis  v.  Railway  Co.,  67  Wis.  46, 
30  N.  W.  282.  Courts  holding  the 
conditions  or  contract  releasing 
carriers  from  liability  indorsed 
upon  the  pass  valid.  Rogers  v. 
Kennebec,  86  Me.  261,  29  Atl. 
1069,  25  L.  R.  A.  491,  holding  that 
"a  condition  in  a  free  pass  ex- 
empting the  carrier  from  all  lia- 
bility for  personal  injury  is 
valid."    Where  the  free  pass  was 


§  671.] 


LIMITATION    OF    LIABILITY. 


747 


§  671.  Limitations  growing  out  of  that  which  is  incident  to 
the  carriage. — In  the  carrying  on  of  every  business  there  are 
certain  limitations,  or  qualifications,  of  the  liability  of  the  owner, 
or  proprietor,  that  of  necessity  grow  out  of  that  which  is  inci- 
dent to  the  doing  of  the  very  thing  that  results  in  damage;  as, 
for  example,  the  ma^infacturer  who  employs  men  to  run  danger- 
ous and  intricate  machinery;  the  employee  in  accepting  the  em- 
ployment understands  that  the  machinery  is  dangerous  and  that 
he  must  bring  to  the  using  of  it  care  and  skill,  and  if  he  is  in- 
jured in  its  ordinary  use  the  courts  have  held  that  the  risk  is  one 
that  he  assumes  when  he  accepts  the  employment.  This  same 
principle  may  be  applied  to  the  subject  we  are  here  considering; 
the  common  carrier  of  passengers  is  held  to  the  very  highest  de- 
gree of  diligence  in  operating  his  vehicles,  trains,  or  boats;  but 
there  are  certain  risks  that  the  passenger  must  be  held  to  take 


a  gratuity,  held  valid.  Quimby  v. 
Railway  Co.,  150  Mass.  365,  23  N. 
E.  205,  5  L.  R.  A.  846;  Kinney  v. 
Railway  Co.,  32  N.  J.  L.  407,  90 
Am.  Dec.  675;  Wells  v.  Railway 
Co.,  24  N.  Y.  181;  Perkins  v.  Rail- 
way Co.,  24  N.  Y.  196;  Bissell  v. 
Railway  Co.,  25  N.  Y.  442;  Mul- 
doon  V.  Railway  Co.,  7  Wash. 
528,  35  Pac.  422,  22  L.  R.  A..  794. 
For  a  general  discussion  as  to 
limitation  of  liability  by  carriers 
for  personal  injuries  to  passen- 
gers, see  note  and  collection  of 
authorities  following  Clark  v. 
Geer,  32  U.  S.  C.  C.  App.  301. 

In  Indianapolis  Traction,  etc. 
Co.  V.  Lawson,  74  O.  C.  A.  630, 
143  Fed.  834,  5  L.  R.  A.  (N.  S.) 
721,  where  a  street-car  company 
undertook  to  give  a  convention  of 
women  a  free  ride  over  its  lines 
by  the  use  of  its  cars  under  the 
control  of  its  servants,  it  was 
held  that  the  company  was  bound 
to  exercise  at  least  ordinary  care, 
and  failing  to  do  so  was  liable. 

In  the  case  of  Bradburn  v. 
Whatcom  County  Ry.  &  Lt.  Co. 
(Wash),    88    Pac.    1020,    the    de- 


fendant sought  to  excuse  the  in- 
jury to  the  passenger  on  the 
ground  that  he  was  riding  on  a 
free  pass  in  violation  of  law.  The 
court  held  that  the  right  of  re- 
covery for  injuries  does  not  de- 
pend on  the  existence  of  a  con- 
tract of  carriage.  The  passenger 
may  maintain  an  action  ex  delicto 
for  the  failure  of  the  carrier  to 
do  his  duty.  That  the  illegality 
of  the  pass  did  not  render  the 
passenger  a  trespasser;  that  if 
it  was  a  void  pass  the  conductor 
should  have  demanded  pay  for 
transportation.  McNeill  v.  Dur- 
ham, etc.  R.  Co.,  135  N.  C.  682. 

As  to  liability  of  carrier  to 
those  riding  on  free  pass,  Nor- 
folk, etc.  R.  Co.  V.  Tanner,  100 
Va.  379;  Williams  v.  Oregon 
Short  Line,  18  Utah,  210;  Louis- 
ville etc.  R.  Co.  V.  Taylor,  126 
Ind.  126;  In  re  California  Nav. 
etc.  Co.  110  Fed.  670;  Doyle  v. 
Fitchburg  R.  Co.,  162  Mass.  66, 
166  Mass.  492;  Ryckman  v.  Ham- 
ilton, etc.  R.  Co.,  10  Ont.  L.  Rep. 
419,  4  Am.  &  Eng.  Ann.  Cases, 
1126,  and  notes  on  page  1131, 


748  CARRIERS  OF  PASSENGERS.  [§  671. 

upon  himself.  For  example,  the  postal  clerk  takes  the  risks 
that  are  usually  ordinary  and  incident  to  the  riding  and  work- 
ing in  the  postal  car,  and  should  he  be  thrown  down  or  jolted 
against  the  sides  of  the  car  while  the  train  is  running  around 
curves  or  coming,  necessarily,  to  a  sudden  stop,  the  carrier 
would  not  be  liable.  And  sio  if  one  should  board  a  freight  train 
as  a  passenger,  and  in  the  usual  running  of  the  train  should,  be- 
cause of  the  slacking  of  the  speed,  be  thrown  from  his  seat  and 
injured,  or  by  the  usual  and  sudden  jolting  should  suffer  dam- 
ages, he  would  be  held  to  have  assumed  all  the  ordinary  risks 
that  are  incident  to  such  a  trip  and  could  not  recover  from  the 
carrier. 

This  question  was  discussed  in  the  case  of  Olds  v.  Railway 
Co.,^^  where  a  passenger  was  injured  while  riding  upon  defend- 
ant's freight  train.  The  court  say:  "From  the  composition  of 
such  a  train,  and  the  appliances  necessarily  used  in  its  efficient 
operation,  there  cannot,  in  the  nature  of  things,  be  the  same 
immunity  from  peril  in  traveling  by  freight  trains  as  there  is 
by  passenger  trains;  but  the  same  degree  of  care  can  be  exercised 
in  the  operation  of  each.  The  result  in  respect  of  the  safety  of 
the  passenger  may  be  wholly  different  because  of  the  inherent 
hazards  incident  to  the  operation  of  one  train,  and  not  to  the 
other;  and  it  is  this  hazard  the  passenger  assumes  in  taking  a 
freight  train,  and  not  hazard  or  peril  arising  from  the  negli- 
gence or  want  of  proper  care  of  those  in  charge  of  it." 

15  172   Mass.   73,   51   N.   E.   451;  373;  Railway  Co.  v.  Axley,  47  111. 

Le  Barron  v.  Ferry  Co.,  11  Allen,  App.   307;    Dunn   v.   Railway   Co, 

312;  Hey  ward  v.  Railway  Co.,  169  58  Me.  187;  Lusby  v.  Railway  Co., 

Mass.  466,  48  N.  E.  773;  Dodge  v.  41  Fed.  181;  Railway  Co.  v.  Dick- 

S.  S.  Co.,  148  Mass.  207,  19  N.  E.  erson,  59  Ind.  317. 


CHAPTER  V. 


BAGGAGE  OR  THE  PASSENGER'S  EFFECTS. 


672. 

Kinds  of  baggage. 

§  685 

'  673. 

Ordinary    baggage — Defini- 

tion. 

686 

674 

(1)  The    station   in   life   of 

the  passenger. 

687 

675. 

(2)    The  business  or  occu- 
pation of  the  traveler. 

676. 

(3)  The  object  of  the  jour- 

688. 

ney. 

689 

677. 

(4)    The    effects    must    be 
personal  to  the  traveler. 

690 

678. 

(5)   Must  be  reasonable  in 
amount  for  the  journey 

691. 

and  its  objects. 

692 

679. 

What  is  not  baggage. 

680. 

Sample     trunks     or 

commercial  effects. 

681. 

Payment    of    excess 

baggage. 

693. 

683. 

Reasonable      regula- 

tion. 

694. 

683. 

Good  faith. 

695. 

684. 

The  owner  of  the  baggage 
should  be  a  passenger. 

Should  the  owner  accom- 
pany the  baggage? 

Baggage  of  one  riding  upon 
a  free  pass. 

Liability  of  the  carrier  for 
baggage  under  his  ex- 
clusive control. 

Hand  baggage. 

Sleeping-car   companies. 

Liability  for  theft  of  serv- 
ants. 

A  high  degree  of  ordinary 
diligence  required. 

Mixed  custody  of  passen- 
ger and  carrier — Is  the 
liability  of  steamship 
company  and  innkeeper 
the  same? 

The  baggage  of  a  steerage 
passenger. 

Termination   of  liability. 

Fiailure  of  carrier  to  de- 
liver baggage. 


§  672.  Kinds  of  baggage. — The  baggage  or  property  and  ef- 
fects of  the  passenger  may  be  divided  into  three  classes.  First, 
the  ordinary  baggage  that  is  consigned  to  the  carrier's  control; 
second,  commercial  baggage,  or  effects  which  are  also  consigned 
to  the  carrier's  control;  and  third,  hand  baggage.  The  law  re- 
lating to  this  subject  has  been  for  the  last  twenty-five  years  or 
more  in  a  state  of  evolution,  and  while  the  decisions  and  author- 
ities have  been  somewhat  conflicting,  it  may  be  said  that  the  law 
is  now  fairly  well  settled.  Within  comparatively  the  last  few 
years  a  new  class  of  baggage,  or  property  carried  by  the  carrier 
of  passengers,  has  come  into  existence  and  demands  the  attention 
and  consideration  of  the  courts.     It  has  grown  up  by  reason  of 


750  CARRIERS    OP    PASSENGERS.  [§    674, 

a  vast  wholesale  business  that  has  been  transacted  through  the 
agency  of  commercial  travelers  who  carry  with  them  from  place 
to  place  large  sample  trunks  filled  with  valuable  goods  and 
commodities  for  the  benefit  of  the  trade.  The  early  common-law 
rules  governing  the  law  of  baggage  gave  no  place  to  this,  and  it 
has  been  the  duty  of  the  courts  to  settle  and  establish,  upon  the 
principles  of  law  governing  carriers,  their  duties  and  liabilities 
with  reference  to  this  business.  Technically  this  is  not  baggage, 
but  rather  commercial  effects  used  not  as  baggage  by  the  passen- 
ger but  for  the  earrjnng  on  of  his  business. 

§  673.  Ordinary  baggage — Definition. — It  is  difficult  to  for- 
mulate a  definition  that  will  embrace  all  the  essentials  of  the 
baggage  of  a  passenger ;  it  depends  upon  so  many  conditions  and 
circumstances,  his  station  in  life,  the  objects  of  the  journey,  his 
business  or  vocation, — all  must  be  taken  into  consideration  in 
arriving  at  what  would  be  his  legal  baggage.  Is  the  passenger 
a  young  man  on  his  way  to  enter  college,  or  is  he  on  a  journey 
for  recreation?  Is  he  an  artist  going  to  the  country  to  sketch, 
or  a  military  officer  on  an  expedition  with  his  command  ? 

Taking  into  account  these  several  conditions,  it  may  be  said 
that  the  baggage  of  a  passenger  is  such  wearing  apparel  and 
articles  of  personal  necessity,  comfort,  conveniences  or  recrea- 
tion as  would  be  needed  by  the  passenger  on  his  journey  and  to 
accomplish  its  object;  that  is  to  say,  it  is  the  ordinary  effects 
that  are  reasonably  needed  by  one  upon  his  journey  and  to  ac- 
complish its  object  that  are  termed  ordinary  baggage.  In  deter- 
mining, therefore,  what  is  baggage,  we  have  to  consider  (1)  the 
station  in  life  of  the  passenger,  (2)  his  business  or  occupation, 
(3)  the  object  of  his  journey,  (4)  whether  the  effects  are  per- 
sonal to  him,  and  (5)  are  they  reasonable  in  amount  for  the 
journey  and  its  objects. 

§  674.  (1)  The  station  in  life  of  the  passenger. — Very  much 
depends  upon  the  station  in  life  of  the  passenger  in  determining 
what  effects  will  be  allowed  him  as  baggage  upon  his  journey. 
It  is  the  ordinary  baggage — the  ordinary  necessities  for  the 
comfort  and  convenience  of  the  particular  person — that  are  al- 
lowed. It  will  be  readily  seen  that  the  man  or  woman  who  lives 
in  luxury  and  affluence  will  ordinarily  use  different  apparel  and 
articles  of  comfort  than  a  poor  man  or  woman  living  and  occupy- 
ing a  different  station  in  life.  One  of  the  royal  family  of  Eng- 
land, or  of  any  of  the  countries  of  the  old  world,  would  no  doubt 


§    676.]  BAGGAGE  OR  THE  PASSENGER'S  EFFECTS.  751 

carry  different  effects  upon  a  journey  than  a  man  engaged  in 
the  ordinary  pursuits  of  life.^ 

§  675.  (2)  The  business  or  occupation  of  the  traveler. — The 
business  or  occupation  of  the  passenger  must  necessarily  have 
very  much  to  do  with  the  baggage  he  would  ordinarily  carry. 
A  merchant  on  his  way  to  the  manufacturing  city  to  buy  goods 
would  carry  different  baggage  than  a  drover  in  charge  of  a  car 
of  live  stock.  Mr.  Justice  Field,  in  Railway  Co.  v.  Swift, "^  said : 
''The  contract  to  carry  only  implies  an  undertaking  to  transport 
such  a  limited  quantity  of  articles  as  are  ordinarily  taken  by 
travelers  for  their  personal  use  and  convenience,  such  quantity 
depending  of  course  upon  the  station  in  life  of  the  party,  the 
object  and  length  of  his  journey,  and  many  other  considera- 
tions." Holding  that  surgical  instruments  in  the  case  of  a 
surgeon  in  the  army  traveling  with  troops  constituted  a  part  of 
his  baggage,  the  court  say:  "The  value  of  the  surgical  instru- 
ments was  properly  included;  instruments  of  that  character  in 
the  case  of  a  surgeon  in  the  army  traveling  with  troops  may 
properly  be  regarded  as  part  of  his  baggage ;  he  may  be  required 
to  use  these  instruments  at  any  time,  and  must  accordingly  have 
them  near  his  person  where  they  can  be  had  upon  a  moment's 
notice. ' ' 

§  676.  (3)  The  object  of  the  journey. — The  law  seeks  to  rec- 
ognize that  as  baggage  which  is  necessary  for  the  comfort  and 
convenience  of  the  traveler  on  his  journey  and  in  accomplishing 

1  Hurwitz  V.  Hamburg,  etc.  the  passenger  while  traveling. 
Packet  Co.,  56  N,  Y.  Supp.  579.  In  Railway  Co.  v.  Fraloff,  100  U. 
In  Matz  V.  Railway  Co.,  85  Cal.  S.  24,  25  L.  Ed.  531,  it  was  said, 
329,  it  was  held  that  ladies'  jew-  whether  an  article  of  wearing  ap- 
elry  is  not  a  proper  article  of  parel  in  any  particular  case  con- 
baggage  to  be  carried  in  the  stitutes  baggage,  as  that  term  iS 
trunk  of  a  man  traveling  alone  understood  in  the  law,  for  which 
so  as  to  render  the  carrier  liable  the  carrier  is  responsible  as  an 
•for  its  value  in  case  of  its  loss,  at  insurer,  depends  upon  the  in- 
least  when  it  is  placed  in  the  quiry  whether  it  is  such  in  quan- 
trunk  simply  for  the  purpose  of  tity  and  value  as  passengers  un- 
having  it  transported.  But  in  Mc-  der  like  circumstances  ordinarily 
Gill  V.  Rowand,  3  Pa.  St.  451,  it  or  usually  carry  for  personal  use 
was  held  that  where  a  man  was  when  traveling, 
traveling  with  his  wife,  whose  279  U.  S.  (12  Wall.)  272,  2  L. 
jewelry  was  in  a  trunk,  that  it  Ed.  428;  Macrow  v.  Railway  Co., 
might  well  be  held  that  the  jew-  L.  R.  6  Q.  B.  621. 
elry  was  intended  for  the  use  of 


752  CARRIERS    OF    PASSENGERS.  [§    677. 

its  object.  Illustrations  are  numerous.  The  artist  going  upon  a 
sketching  tour  would  need  paints,  brushes,  easels,  and  that  which 
would  be  necessary  and  convenient  for  his  work,  and  such  ef- 
fects would  be  legally  held  to  be  his  baggage;  but  if  the  same  in- 
dividual should  be  traveling  to  the  wedding  of  his  friend,  or  on 
a  fishing  or  hunting  trip,  his  artist's  tools  would  hardly  be  con- 
sidered as  bagga-ge,  but  instead  he  would  naturally  take  with 
him  clothing  and  baggage  suitable  to  the  object  of  his  journey; 
if  hunting  or  fishing,  his  hunting  suit,  guns,  ammunition,  and 
such  articles  as  would  be  needed  on  the  trip. 

§  677.  (4)  The  effects  must  be  personal  to  the  traveler. — 
It  has  been  held  with  great  unanimity  that  the  effects  carried 
as  baggage  must  be  personal  to  the  passenger.  As  where  a  wife 
purchased  books  for  her  husband  while  abroad  with  money 
which  he  remitted  to  her  for  that  purpose  and  packed  them 
among  her  baggage,  it  was  held  in  an  action  for  loss  of  the  bag- 
gage and  personal  effects  that  she  should  not  recover,  as  the 
books  did  not  constitute  a  part  of  her  personal  effects.^  On 
the  other  hand,  where  "a  catalogue  prepared  by  a  traveling 
salesman  at  his  own  expense,  and  which  was  his  own  individual 
property  and  carried  with  him  as  an  article  convenient  and 
necessary  for  use  in  his  business  while  traveling,  was  lost  with 
other  articles  in  a  valise,  it  was  held  that  he  could  recover  for  it 
upon  the  grounds  that  it  was  an  article  of  personal  baggage."  * 

In  Oakes  v.  Railway  Co.^  it  was  held  "that  baggage  is  confined 
to  such  articles  as  are  usually  carried  as  baggage  for  the  per- 
sonal use  of  the  passenger,  or  for  his  convenience,  instruction  or 
amusement  on  the  journey,  and  does  not  include  that  which  is 
carried  for  the  purpose  of  business,  such  as  merchandise  or  the 
like."  And  it  has  been  said  that  whatever  the  passenger  takes 
with  him  for  his  personal  use  or  convenience,  either  with  refer- 
ence to  the  immediate  necessities  or  the  ultimate  purpose  of  the 
journey,  must  be  considered  personal  baggage.  And  again,  bag- 
gage is  such  articles  as  it  is  usual  for  persons  traveling  to  take 
with  them.  And  so  it  has  been  universally  held  that  money 
necessary  for  the  payment  of  the  expenses  of  a  journey,  which 
is  carried  in  the  trunk  of  a  passenger,  is  part  of  his  baggage,  and, 

3  Hurwltz     V.     Hamburg,     etc.  *  Staub    v.    Kendrick,    121    Ind. 

Packet  Co.,  56  N.  Y.  Supp.  579.  226,  6  L.  R.  A.  619. 

5  20  Oreg.  392,  12  L.  R.  A.  318. 


§  678. 


BAGGAGE  OR  THE  PASSENGER'S  EFFECTS. 


753 


if  lost  while  in  the  custody  of  the  carrier  for  transportation,  the 
carrier  would  be  liable.® 

In  Railway  Co.  v.  Berry  "^  the  court  say :  ' '  The  carrier  is  liable, 
as  insurer,  for  money  which  the  passenger,  bona  fide,  includes  in 
his  baggage  to  pay  traveling  expenses,  and  for  personal  use  on 
his  journey,  provided  no  more  is  taken  than  is  necessary  or  usual 
for  the  passenger  of  like  station,  habits  and  condition  in  life  on 
similar  journeys.  For  any  amount  in  excess  of  this  .  .  . 
the  carrier  is  not  liable,  as  such,  unless  he  receives  it  with  notice 
that  the  quantity  is  greater  than  is  usually  carried  by  passen- 
gers under  the  same  or  similar  circumstances." 

In  Bunyan  v.  Railroad  Co}  the  court,  summing  up  the  ques- 
tion as  to  what  is  baggage,  say:  "He  (the  passenger)  was  en- 
titled to  take  with  him,  for  use,  his  personal  baggage  appropriate 
to  the  journey  and  its  object;  that  is,  not  only  wearing  apparel 
for  use  and  ornament,  but  also  other  articles,  all  within  reason- 
able limit,  the  use  of  which  was  personal  to  him  during  his  jour- 
ney and  in  accomplishing  its  purposes.  To  illustrate  the  char- 
acter of  such  articles  other  than  wearing  apparel,  it  is  settled 
that  a  sportsman  journeying  for  sport  may  take  his  gun  case  or 
fishing  apparatus,^  an  artist  may  take  his  easel  when  he  is  on  a 
sketching  tour,^"  and  a  student  in  pursuit  of  study  may  take  hig 
needed  books  and  manuscripts. ' '  ^^ 

§  678.  (5)  Must  be  reasonable  in  amount  for  the  journey 
and  its  objects. — It  is  that  which  is  necessary  for  the  comfort 
and  convenience  of  the  passenger  while  on  his  journey,  and  for 
the  accomplishment  of  the  objects  of  the  journey,  that  is  legally 
considered  to  be  his  baggage.  The  passenger's  personal  conven- 
ience is  the  prime  consideration.  By  these  necessities  the 
amount  of  his  baggage  is  limited;  it  could  not  reasonably  be 
otherwise,  else  the  passenger  might  transport  large  quantities  of 
goods,  and  the  space  and  power  of  the  carrier  devoted  to  the 


6  Brown  v.  Grand,  9  Wend.  85 
Merrill  v.  Grinnell,  30  N.  Y.  594 
Fairfax  v.  Railway  Co.,  73  N.  Y 
167. 

7  60  Ark.  433,  28  L.  R.  A.  501 
Hutch,  on  Car.  682;  Schoul 
Bailm.  669-71;  Story,  Bailm.  499 
3  Wood,  Ry.  Law,  401;  Jordan  v 
Railway  Co.,  5   Cush.  69,  51  Am 

48 


Dec.    44;     Angell,    Carr.    115;     2 
Beach,  Railways,  59. 

8  61  N.  J.  537,  43  L.  R.  A.  284. 

9  Hawkins    v.    Railway    Co.,    6 
Hill  (N.  Y.),  586,  41  Am.  Dec.  767. 

10  Merrill  v.   Grinnell,   30   N.   Y. 
619. 

11  Hopkins       v.       Wescott,       6 
Blatchf.  64. 


754  CARRIERS    OF    PASSENGERS.  [§    679. 

hauling  of  baggage  would,  of  necessity,  be  very  much  increased. 
As  has  been  said,  ' '  the  company  may  rely  upon  the  implied  rep- 
resentation that  whatever  is  offered  by  the  passenger  as  bag- 
gage is  that  and  nothing  else.  If  it  be  baggage,  the  baggage 
goes  under  the  contract  to  carry ;  if  it  is  not,  it  does  not. ' '  ^^ 

§  679.  What  is  not  baggage. — As  we  have  seen,  the  articles 
carried  must  be  personal  to  the  passenger  and  for  use  upon  the 
journey,  or  the  objects  of  it,  and  reasonable  in  amount;  and  so 
any  articles  that  are  carried  merely  for  transportation  are  not 
in  a  legal  sense  the  baggage  of  the  passenger.  And  if  it  should 
appear  that  a  larger  amount  of  money  or  other  effects  than  were 
necessary  for  the  expense  of  or  use  on  the  journey,  and  that 
which  is  incident  to  it,  were  carried  by  a  passenger  in  his  trunk 
without  the  knowledge  of  the  carrier,  it  could  not  be  held  to  be 
baggage.  Or,  if  goods  were  transported  in  the  trunk  of  the  pas- 
senger to  be  delivered  at  the  end  of  the  journey  to  some  other 
person,  or  to  be  sold,  or  used  for  some  other  purpose  than  that 
which  would  be  considered  for  the  personal  use  of  the  passen- 
ger, such  goods  would  not  be  considered  baggage.^^  The  con- 
gress of  the  United  States  has  deemed  it  necessary  to  enact  a 
statute  with  reference  to  the  various  valuable  articles  shipped 
as  freight  or  baggage  on  vessels.^*  And  it  has  been  held  that 
under  this  statute  a  lady's  lace  shawl  made  exclusively  of  Chan- 
tilly  lace,  under  the  particular  circumstances,  was  not  baggage.^* 
And  where  the  plaintiff's  trunk,  which  was  checked,  contained 
among  other  goods  bank-notes  of  a  large  amount,  it  was  held 
that  such  money  could  not  be  considered  asi  included  under  the 
term  "baggage"  so  as  to  render  the  carrier  liable  for  it.^®  So 
watches  of  great  value,  which  were  not  incident  to  the  journey, 
contained  in  a  traveling  case,  and  additional  to  the  one  that  was 
worn  upon  the  person  of  the  passenger,  a  sack  or  a  muff,  or  a 
napkin-ring  carried  by  a  male  passenger,  have  been  held  not  to 
be  legally  baggage,  for  to  hold  them  to  be  baggage  would  be  in 

12  stimson  v.  Railway  Co.,  98  Mass.  83;  Humphreys  v.  Perry, 
Mass.  83;  Railway  Co.  v.  Bowler,  148  U.  S.  627,  37  L.  Ed.  587;  Rail- 
etc.  Co.,  63  Ohio  St.  274;  Railway  way  Co.  V.  FralofE,  100  U.  S.  24, 
Co.  V.  State,  65  Ark.  363,  41  L.  R.  25  L.  Ed.  531. 

A.   33;    Railway   Co.   v.   Swift,   79  i*  U.  S.  R.  S.,  sec.  4282. 

U.  S.  (12  Wall.)  272;  Railway  Co.  is  Ocean   S.   S.   Co.  v.  Way,   90 

V.  McGahey,  63  Ark.  344,  36  L.  R.  Ga.  747,  20  L.  R.  A.  123. 

A.  781.  16  Bank  v.  Brown,  9  Wend.  85. 

13  Stimson    v.    Railway    Co.,    98 


§    680.]  BAGGAGE  OR  THE  PASSENGER'S  EFFECTS.  755 

violation  of  the  rale  that  the  effects  must  be  personal  to  the  con- 
venience, comfort,  instruction  or  entertainment  of  the  passen- 
ger.^^ 

In  Oakes  v.  Railway  Co}^  it  was  held  that  articles  of  what- 
ever kind  that  do  not  properly  come  within  the  description  of 
ordinary  baggage  are  not  included  within  the  terms  of  such  con- 
tract, nor  is  the  carrier  liable  for  their  loss  or  destruction  in  the 
absence  of  negligence.  So  stage  properties,  costumes,  parapher- 
nalia, advertising  matter,  etc.,  are  not  articles  required  for  the 
pleasure  or  convenience  or  necessity  of  the  passenger  during  his 
journey,  but  are  plainly  intended  for  the  larger  or  ulterior  pur- 
poses of  carrying  on  the  theatrical  business,  therefore  they  do 
not  fall  under  the  denomination  of  baggage. 

§  680.  Sample  trunks  or  commercial  effects. — As  we 

have  seen,  the  carrier  is  bound  to  carry  for  the  passenger  his 
baggage — such  baggage  as  is  personal  to  him  and  belongs  to 
what  is  termed  ' '  ordinary  baggage, ' '  as  applied  to  the  particular 
person  and  the  particular  journey;  but  he  is  not  bound  to  carry 
articles  of  merchandise,  or  that  which  is  not  ordinary  baggage, 
unless  he  consents  to  carry  them  as  such  after  having  notice, 
either  express  or  constructive ;  that  is,  such  notice  as  would  be 
indicated  by  facts,  circumstances  or  observation  that  the  articles 
are  not  baggage.  There  should  be  notice  of  some  kind  to  the 
carrier  that  the  articles  contained  in  the  trunk  or  package  are 
not  the  personal  baggage  of  the  passenger.  Such  notice  is  often 
inferred  from  the  appearance  of  the  package  containing  the  arti- 
cles, or  from  the  knowledge  of  the  servants  of  the  carrier  that 
the  passenger  is  engaged  in  the  business  of  carrying  such  arti- 
cles. The  business  carried  on  by  commercial  travelers  through 
the  country  has  come  to  be  so  well  understood  that  it  is  not  diffi- 
cult to  discern  which  are  the  sample  tninks  and  which  the 
trunks  supposed  to  contain  personal  baggage.  In  Sloman  v. 
Railway  Co}^  it  was  said:  "It  does  not  appear  that  it  was  stated, 
in  terms,  to  the  baggagemaster  what  the  trunks  contained,  but 
the  jury  had  the  right  to  consider  the  surrounding  circum- 
stances, the  appearance  of  the  passenger  and  of  the  articles,  the 
conversation  between  the  passenger  and  the  baggage-master,  and 

17  Railway  Co.  v.  Boyce,  73  111.  is  20  Oreg.  392;  Wilson  v.  Rail- 

510;  Belfast  v.  Railway  Co.,  9  H.  way  Co.,  56  Me.  62. 

L.  556;   Railway  Co.  v.  Shepherd,  is  67  N.  Y.  208;  Talcott  v.  Rail- 

8  Exch.  30.  way  Co.,  159  N.  Y.  661,  54  N.  E.  1. 


756  CARRIERS  OF  PASSENGERS.  [§  680. 

the  dealings  between  them ;  and  if  they  indicated  that  the  trunks 
were  not  ordinary  baggage,  or  received  or  treated  as  siuch,  the 
jury  had  the  right  to  draw  the  inference  of  notice,  and  that  they 
were  received  as  freight."  And  where  a  sample  trunk  was 
checked  "without  any  misrepresentation,  and  without  any  re- 
lease of  liability  or  any  request  therefor,  on  payment  of  a  charge 
for  excess  baggage,  which  was  the  same  for  sample  trunks  as  for 
ordinary  baggage,  and  the  baggageman  had  constructive  notice 
of  the  character  of  the  trunk  from  its  appearance  and  from 
other  circumstances,  although  there  was  a  rule  of  the  company 
prohibiting  the  checking  of  sample  trunks  without  a  release  of 
liability, ' '  it  wasi  held  in  an  action  for  the  loss  of  the  trunk  that 
the  railroad  company  was  liable ;  that  from  the  surrounding  facts 
and  circumstances  the  carrier  was  chargeable  with  notice  that  it 
was  a  commercial  traveler's  trunk,  the  court  saying:  "This 
court  has  held  that  notice  may  be  given  to  the  common  carrier 
by  other  means  than  the  direct  statement  of  the  owner  that  he  is 
a  commercial  traveler  and  that  his  trunk  contained  samples."  ^"^ 
Where  the  carrier  knowingly  permitted  passengers,  without 
payment  of  any  extra  charge,  such  passengers  having  purchased 
tickets  for  their  transportation,  to  take  articles  as  personal  bag- 
gage wliich  were  not  properly  such,  it  was  held  that  the  carrier 
was  liable  for  their  loss  and  destruction  as  insurers  of  such  bag- 
gage in  the  same  manner  and  to  the  same  extent  as  if  the  goods 
were  freight.^^  The  court  say:  "While  it  is  true  that  passen- 
ger carriers  are  not  liable  for  merchandise  and  the  like  when 

20  Trimble  v.  Railway  Co.,   162  goods  has  notice  of  such  regula- 

N.  Y.  84,  48  L.  R.  A.  115.  tion."     Butler   v.    Railway   Co.,    3 

2iOakes  v.  Railway  Co.,  20  E.  D.  Smith,  571;  Hanes  v.  Rail- 
Oreg.  392;  Story  on  Bailm.  499;  way  Co.,  29  Minn.  161;  Railway 
Railway  Co.  v.  Shepherd,  8  Exch.  Co.  v.  Capps  (Tex.),  16  Am.  & 
30;  Sloman  v.  Railway  Co.,  6  Eng.  Ry.  Cases,  118.  Held,  where 
Hun,  546.  The  court  say:  "As  to  a  railroad  company,  through  its 
the  liability  of  the  carrier,  they  baggage  or  ticket  agent,  receives 
are  liable  if  they  knowingly  un-  articles  for  transportation  as  bag- 
dertake  to  transport  merchandise  gage  knowing  at  the  time  that 
in  trunks  or  boxes  which  have  such  articles  are  not  properly 
been  received  by  them  for  trans-  baggage,  the  company  will  be  re- 
portation  in  passengers'  trunks,  sponsible  therefor  as  a  common 
unless  the  agent  who  receives  the  carrier,  and  will  be  estopped 
packages  for  that  purpose  vio-  from  denying  that  the  same  was 
lates  a  regulation  of  the  com-  not  baggage.  Railway  Co.  v.  Conk- 
pany  by  so  doing,  notwithstand-  lin,  38  Kan.  55;  Hoeger  v.  Rail- 
ing the  passenger  or  owner  of  the  way  Co.,  63  Wis.  100. 


§    682. j  BAGGAGE  OR  THE  PASSENGER'S  EFFECTS.  757 

packed  with  the  traveler's  baggage  if  the  baggage  be  lost,  yet  if 
the  merchandise  be  so  packed  as  to  be  obviously  merchandise  to 
the  eye,  and  the  carrier  takes  it  without  objection,  he  is  liable 
for  the  loss."  The  rule,  of  course,  would  be  otherwise  if  the 
passenger  by  deceit  or  misrepresentation  procured  the  shipment 
of  articles  that  were  not  properly  baggage,  as  baggage,  or  if 
there  was  no  such  constructive  notice  as  has  been  mentioned, 
and  the  facts  were  not  known  to  the  servants  of  the  carrier  that 
the  trunks  or  packages  contained  articles  not  baggage;  in  such 
casie  the  carrier  would  not  be  liable  as  an  insurer  for  the  value 
of  such  articles  if  they  were  lost,  and  his  liability  could  only  be 
based  upon  his  fault  or  negligence  resulting  in  the  loss  of  the 
property. 

§  681.  Payment  of  excess  baggage. — The  implied  con- 
tract to  carry  the  ordinary  baggage  of  the  passenger  rests  upon 
the  consideration  paid  for  his  transportation ;  and  if  articles  not 
baggage,  such  as  merchandise  or  samples  of  traveling  men  with 
the  knowledge  of  the  carrier,  or  after  having  notice  of  the  con- 
tents of  the  trunks  or  packages,  are  carried  as  baggage,  the  same 
consideration  will  support  the  implied  contract  to  safely  carry, 
and  the  carrier  will  be  liable  as  if  it  were  ordinary  baggage ;  but 
carriers  generally  have  made  a  regulation  as  to  how  many  pounds 
of  baggage  the  passenger  will  be  allowed,  and  that  all  over  that 
amount  shall  be  charged  as  excess  baggage  and  certain  rates  paid 
for  its  carriage ;  and  in  case  it  is  merchandise  or  such  articles  as 
are  not  baggage,  that  a  release  of  their  liability  as  insurers  shall 
be  given  them.  Such  regulations  have  been  generally  conceded 
reasonable  and  binding,  so  a  further  and  another  consideration 
is  generally  charged  and  paid  to  support  the  contract  for  the 
carriage  of  excess  baggage,  and  this  contract  creates  a  somewhat 
different  relation.  The  duties  and  liabilities,  however,  of  the 
carrier  of  passengers  are  the  same  whether  the  articles  are  car- 
ried as  baggage  or  upon  a  contract  supported  by  payment  of 
consideration  to  carry  them  as  excess  baggage. 

§  682.  Reasonable  regulation. — The  carrier  of  passen- 
gers may  make  regulations  touching  its  duties  and  liabilities  as 
to  baggage,  but  such  regulations  must  be  reasonable,  and  their 
reasonableness  is  a  question  for  the  jury.-^     It  has  been  held 

22  state  V.  Overton,  24  N.  J.  L.  Co.,  45   N.   J.  Eq.   67,   6  L.  R.   A. 

235,  61  Am.  Dec.  671;  Railway  Co.  855;  Coffee  v.  Railway  Co.,  25  So. 

V.  Stevens,  95  U.  S.  655,  24  L.  R.  157. 
A.  535;  Railway  Co.  v.  Stockyard 


758  CARRIERS    OF    PASSENGERS.  [§    683. 

that  the  carrier  cannot  suddenly  and  without  notice  to  its  cus- 
tomers change  its  customs  and  regulations  not  acquiesced  in.^^ 
And  where  a  carrier  had  printed  upon  the  ticket  delivered  to 
the  passenger,  "Good  for  one  continuous  passage  in  either  di- 
rection between  New  York  and  Elizabeth,  N.  J.  No  stop-otiP  al- 
lowed. Free  transportation  allowed  for  150  lbs.  baggage  (wear- 
ing apparel)  only,  and  company's  liability  expressly  limited  to 
$1.00  per  lb.,"  and  where  the  passenger  with  such  a  ticket  un- 
dertook to  board  a  train  of  the  defendant  carrying  certain  pack- 
ages in  his  hands  which  were  not  personal  baggage,  and  was  pro- 
hibited by  the  servants  of  the  company  for  the  reason  that  the 
company  did  not  permit  its  passengers  holding  such  a  ticket  to 
carry  such  packages  upon  its  train,  it  appearing  that  the  custom 
for  a  long  time  had  been  otherwise  and  the  passenger  had  no  no- 
tice of  any  change  or  other  regulation,  the  court,  in  an  action 
for  damages,  held  the  defendant  liable,  and  in  the  opinion  say : 
"We  think  if  the  defendant  company  had,  previous  to  the  denial 
of  admission  of  the  plaintiff  to  their  cars  complained  of,  for  a 
long  time  acquiesced  in,  and  made  accommodations  for,  the  car- 
riage of  small  packages  of  merchandise  of  its  passengers  as  per- 
sonal baggage,  so  as  to  lead  them  to  accept  and  rely  upon  its  atti- 
tude in  that  respect  as  one  of  its  regulations,  that  it  could  re- 
sume its  right  under  the  law  only  after  reasonable  notice  of  its 
rescission  of  the  regulations  so  made.  It  could  not  suddenly  en- 
force the  right  resumed  against  passengers  who  were,  in  good 
faith,  traveling  in  reliance  upon  the  previous  regulation,  with- 
out reasonable  notice,  and  ignorant  of,  and  unprepared  for,  any 
change  in  it. ' '  ^* 

§  683.  Good  faith. — Good  faith  and  fair  dealing  is  re- 
quired of  the  passenger  toward  the  carrier.  If  from  the  appear- 
ance of  the  trunk  delivered  to  the  carrier  for  transportation  as 
his  baggage,  or  from  the  circumstances  appearing  at  the  time, 
the  carrier  could  not  discover  that  the  effects  being  carried  were 
baggage — that  the  contents  of  the  trunk,  or  receptacle,  Avas  goods 
or  property  other  than  baggage,  he  would  not  be  held  liable  for 
its  loss;  in  such  case  the  passenger  is  bound  to  give  the  carrier 
notice  of  the  contents  of  the  trunk  and  obtain  his  acquiescence 

23Riinyan  v.  Railway  Co.,  61  N.  24  Runyan  v.  Railway  Co.,  61  N. 

J.  537,  43  L.  R.  A.  284;   Trimball      J.  537,  43  L.  R.  A.  284. 
V.  Railway  Co.,  162  N.  Y.  85. 


§    685.]  BAGGAGE  OR  THE  PASSENGER'S  EFFECTS.  759 

to  carry  it  as  baggage  if  he  would  make  him  liable.  The  law 
will  not  permit  the  passenger  by  trick,  or  secret  packing  away 
of  articles  not  baggage,  of  which  the  carrier  has  no  knowledge, 
to  hold  him  liable  for  their  loss  or  injury.  In  Eaihvay  Co.  v. 
Berry  ^^  the  court  say :  ' '  The  passenger  must  observe  the  utmost 
candor  and  good  faith  in  presenting  his  baggage  for  transporta- 
tion, for  the  carrier  is  only  required  to  transport  according  to 
appearances.  If  the  passenger  presents  his  baggage  in  a  closed 
receptacle,  such  as  is  ordinarily  carried  as  baggage,  in  order  to 
lay  upon  the  carrier  the  extraordinary  responsibility  of  insurer, 
the  passenger  must  inform  him  if  it  contains  any  articles  which 
the  carrier  is  not  bound  to  transport  as  baggage.  This  for  the 
reason  that  the  carrier,  when  thus  notified,  may  refuse  to  carry 
altogether,  or  accept  and  charge  an  additional  sum  to  the  pas- 
senger's fare  for  the  onerous  liability  he  thus  assumes." 

§  684.  The  owner  of  the  baggage  should  be  a  passenger. — 
The  contract  for  carrying  the  baggage  is  incident  to  the  con- 
tract for  the  carriage  of  the  owner  as  a  passenger,  and,  as  we 
have  seen,  it  rests  upon  the  same  consideration.  It  would  there- 
fore follow,  if  the  owner  of  the  baggage  is  not  a  passenger,  the 
liability  of  the  carrier,  as  a  carrier  of  passengers,  could  not  exist, 
and  if  liable  at  all  it  must  rest  upon  other  grounds.  If  the  car- 
rier had  consented  to  carry  the  baggage  and  received  a  valuable 
consideration  for  it,  he  would,  of  course,  become  liable  as  a  com- 
mon carrier  of  freight;  if  he  consented  to  carry  it  without  com- 
pensation, he  would  be  liable  as  a  gratuitous  bailee,  liable  only 
for  gross  negligence.-® 

§  685.  Should  the  owner  accompany  the  baggage. — If  the 
relation  of  passenger  and  carrier  exists  between  the  carrier  and 
the  owner,  it  would  not  be  necessary  that  he  should  go  upon  the 
same  train  or  boat  with  the  baggage,  if  the  circumstances  were 
such  that  the  carrier  could  be  said  to  have  had  notice  and  con- 
sented, or  if  the  carrier  had  sent  the  baggage  by  another  train, 
or  by  another  line,  without  consulting  the  passenger,  and  with- 
out his  consent.    It  has  been  held  that  when  a  passenger  making 

25  60  Ark.  433,  28  L.  R.  A.  501,  24;    2   Beach,   Railway  Law,   902; 

citing    Schoul.    Bailm.,    sec.     669  Davis  v.  Railway  CJo.,  22  III.  278 

et   seq.;    Hutch.    Carr.,   sec.    685;  and  other  authorities. 

Edw.   Bailm.,   sec.    529;    3   Wood,  26  Collins    v.    Railway    Co.,    10 

Railway  Law,  sees.  401,  406,  408;  Cush.  (Mass.)  506 
Railway  Co.  v.  Fraloff,  100  U.  S. 


760  CARRIERS    OF   PASSENGERS.  [§    685. 

a  journey  over  connecting  lines  holds  tickets  over  such  lines,  and, 
desiring  to  proceed  upon  his  journey,  found  his  baggage  had 
not  arrived  so  he  could  check  it  for  the  train  he  was  about  to 
take,  and  the  carrier  agreed  to  send  it  when  it  did  arrive,  by  the 
first  train,  that  in  such  case  the  carrier  would  be  held  to  the  usual 
liability.^'^  But  if  there  is  no  agreement  or  consent  or  voluntary 
sending  by  a  different  way  by  the  carrier,  it  seems  that  the  car- 
rier is  entitled  to  have  the  owner  accompany  his  baggage,  for 
the  reason  that  to  some  degree  it  might  lessen  the  liability  of  the 
carrier,  as  in  ease  of  disaster  by  wreck  or  fire,  or  some  other  loss, 
especially  at  the  destination  point,  for  in  such  case  the  passenger 
might  relieve  the  carrier  of  the  baggage,  and  thus  save  its  loss 
or  destruction.  A  case  often  cited  is  Collins  v.  Railway  Co}^ 
where  the  passenger  went  by  a  different  train  upon  the  same 
road  and  the  goods  were  lost  without  any  gross  negligence  of 
the  carrier,  or  any  conversion  by  him;  it  was  held  that  the  car- 
rier was  not  liable  for  the  loss.  The  court  say:  "It  is  easy  to 
perceive  that  the  omission  of  the  plaintiff  to  accompany  them 
(the  baggage),  as  he  informed  the  defendant's  agent  he  should, 
contributed  materially  to  the  loss,  and  that  what  might  have 
been  a  very  proper  and  suitable  disposition  of  them  at  the  sta- 
tion at  Lawrence,  under  the  reasonable  belief  that  the  owner 
of  them  was  present  to  take  charge  of  them,  might  have  been  one 
of  hazard  and  exposure  to  loss  in  his  absence. " 

"Wliere  a  carrier  received  baggage  under  the  mistaken  suppo- 
sition that  it  belonged  to  passengers  who  had  purchased  tickets 
over  its  road,  and  that  the  transportation  of  the  baggage  was 
consequently  paid  for;  and  without  intending  to  make  any 
charge  for  the  transportation,  and  the  owner  of  the  baggage 
erroneously  supposed  that  in  purchasing  tickets  to  the  destina- 
tion of  the  baggage  over  another  road  he  had  paid  for  the  trans- 
portation by  the  carrier  to  which  he  had  delivered  the  baggage, 
it  was  held  that  there  was  no  implied  contract  for  the  transpor- 
tation of  the  baggage,  and  that  the  carrier  owed  to  the  owner  the 
duty  only  of  abstaining  from  anything  amounting  to  wilful  or 
wanton  injury  to  his  property  while  in  its  possession,  and  that 

27  Warner  v.  Railway  Co.,  22  company  was  not  obliged  to  re- 
Iowa,  176.  In  Graffin  v.  Railway  ceive  as  baggage  the  trunk  of  one 
Co.,  67  Me.  234,  15  Am.  Ry.  Rep.  who  does  not  go  by  the  same  train. 
372,  it  was  held  that  the  railroad  as  lo  Cush.  (Mass.)  506. 


§    687. j  BAGGAGE  OR  THE  PASSENGER'S  EFFECTS.  761 

the  caii'ier  was  not  liable  for  its  destruction  in  common  with 
their  own  property  caused  by  attempting  to  run  the  train  in 
which  it  was  placed  upon  an  unguarded  bridge,  which  was  and 
long  had  been  so  defective  that  it  could  not  stand  such  a  bur- 
den.2^  But  it  has  been  held  that  it  would  be  sufficient  if  the 
baggage  was  accompanied  by  one  who  had  an  interest  in  the 
baggage,  and  who  ordinarily  would  represent  the  owner  of  it; 
as,  for  example,  where  the  wife  of  the  owner  accompanied  the 
baggage.^*^ 

§  686.  Baggage  of  one  riding  upon  a  free  pass. — If  there  is 
no  consideration  for  the  carriage  of  the  passenger  —  if  it  is  a 
mere  gratuity, —  then  there  can  be  no  consideration  for  the  con- 
tract incident  to  it,  and  the  carriage  of  the  baggage  is  gratuitous ; 
therefore  the  carrier  in  that  case  would  be  a  bailee  for  the  sole 
benefit  of  the  bailor  and  subject  only  to  the  liability  of  such  a 
bailee.  The  rule  would  be  different,  however,  if  there  was  a  con- 
sideration for  the  giving  of  the  pass,  as  where  some  service  was 
rendered  the  carrier. 

§  687.  Liability  of  the  carrier  for  baggage  under  his  exclu- 
sive control. — It  may  be  said  generally  that  for  baggage  of  the 
passenger  that  is  under  the  exclusive  control  of  the  carrier,  the 
liability  of  the  carrier  is  that  of  an  insurer,  or  of  a  carrier  of 
goods.^^  Here  as  in  cases  of  loss  or  injury  of  freight  the  authori- 
ties are  not  entirely  harmonious  as  to  which  carrier  is  liable 
where  the  loss  occurs  upon  a  connecting  carrier's  line.  Where 
baggage  is  checked  to  the  destination  of  the  passenger,  upon  a 
through  ticket  to  transport  him  over  roads  of  initial  and  connect- 
ing carriers,  and  is  lost,  which  carrier  is  liable  to  the  passenger 
for  the  loss  ?  The  same  rule  would  no  doubt  obtain  in  such  case 
as  is  applied  to  cases  of  loss  of  freight.     Some  of  the  courts 

29  Curtis  V.  Railway  Co.,  74  N.  free  pass.    White  v.  St.  Louis,  etc. 

Y.  116-121.     For  full  discussion  as  Co.    (Tex.  Civ.  App.,  1905),  86  S. 

to  passenger  accompaning  his  bag-  W.  962. 

gage  see  Marshall  v.  Pontiac,  etc.  si  Seasongood    v.    Railway    Co.. 

R.  Co.,  126  Mich.  45,  55  L.  R.  A.  14  Ky.  L.  R.  430;  Bank  v.  Brown, 

650.    And  opposed  to  this  see  Mc-  9    Wend.    851,   21   Am.    Dec.    129. 

Kibbin  v.  Wisconsin  C.  R.  Co.,  100  When  shipped  over  different  routes 

Minn.  270,  8  L.  R.  A.  (N.  S.)  489,  by  the  agent  of  the  company,  liable 

110  N.  W.  964.  as  an  insurer.     Estes  v.   Railway 

»o  Beers  et  ux.  v.  Railway  Co.,  Co.,  7  N.  Y.  Supp.  574;  Hubbard  v. 

67   Conn.    417,    34    Atl.    541.     Bag-  Mobile,  etc.  R.  Co.,  112  Mo.  App. 

gage  of  a  passenger  riding  on  a  459,  87  S.  W.  52. 


762  CARRIERS    OF   PASSENGERS.  [§    686 

hold  that  if  there  is  no  agreement  for  through  shipment  either 
express  or  implied  on  the  part  of  the  initial  carrier,  he  can  only 
be  held  for  the  safe  transportation  over  his  own  line  and  delivery 
to  the  connecting  carrier  while  others  hold  that  by  the  act  of 
accepting  the  goods  directed  to  a  destination  beyond  his  own 
line  he  by  such  acceptance  impliedly  agrees  to  deliver  them  as 
directed. ^^ 

§  688.  Hand  baggage. — In  determining  what  articles  are  le- 
gally hand  baggage  the  same  rules  apply  that  have  already  been 
discussed.     By  hand  baggage  is  meant  those  smaller  articles  of 
baggage  usually  carried  in  hand  bags,  valises  or  such  like  small 
packages;  such  articles  of  apparel  as  are  necessary  to  the  com- 
fort and  needs  of  the  passenger  on  his  journey,  and  which  he 
usually  keeps  near  him  while  being  transported  in  the  vehicle 
of  the  carrier.     It  may  include  an  amount  of  money  carried  in 
his  valise  or  traveling  bag,  or  under  some  circumstances  in  his 
clothing,  carried  for  the  expenses  of  his  journey  and  consisting 
of  a  reasonable  amount  for  other  purposes.    The  question  of  the 
duty  and  the  liability  of  the  carrier  seems  to  depend  upon  who 
has  the  custody  or  control  of  the  baggage.    If  the  passenger  has 
the  entire  custody  and  control  of  the  baggage  to  the  exclusion 
of  the  carrier,  if,  as  has  been  said,  "there  exists  the  animo  cus- 
todiendi  on  the  part  of  the  traveler  to  the  exclusion  of  the  car- 
rier," then  the  carrier  cannot  be  held  as  an  insurer  as  in  the 
ease  of  baggage  in  the  entire  custody  and  control  of  the  carrier, 
and  will  not  be  liable  at  all  unless  guilty  of  negligence  which  re- 
sults in  its  loss  or  damage,  in  the  absence  of  contributory  neg- 
ligence on  the  part  of  the  passenger.     The  cases  are  numerous 
upon  this  subject.     Where  a  passenger's  baggage  was  placed  on 
a  seat  near  an  open  window,  by  the  porter  of  the  car,  and  while 
the  car  was  standing  in  the  depot  the  passenger  left  the  car,  but 
his  wife,  who  was  traveling  with  him,  remained  within   and 
walked  up  and  down  the  aisle,  then  went  out  on  the  platform, 
and  then  sat  down  in  a  seat  facing  the  baggage,  and  the  bag- 
gage was  stolen,  it  was  held  in  an  action  for  the  loss  that  it  was 

&2Ante,  §  530;  Kansas  City,  etc.  ing      roads.        Where      passenger 

R.  R.  Co.  V.  Washington,  74  Ark.  checked    baggage    on    a    through 

9,  69  L.  R.  A.  65,  and  notes  col-  ticket,  carrier  held  liable  to  des- 

lecting    cases    as    to    liability    of  tination.     Huitchins  v.  Pa.  R.  Co., 

initial     carriers     generally,     and  181  N.  Y.  186,  73  N.  E.  972. 
rights  of  passengers  on  connect- 


§    690.]  BAGGAGE  OR  THE  PASSENGER'S  EFFECTS.  763 

a  question  for  the  jury  whether  the  passenger  or  his  wife  was 
negligent.^^  And  where  a  passenger  who  was  attempting  to  close 
the  car  window  dropped  her  traveling  bag  out  of  the  window,  it 
Avas  held  she  could  not  recover,  though  the  bag  contained  articles 
of  great  value,  and  the  conductor,  who  was  at  once  requested  to 
do  so,  refused  to  stop  the  train  to  enable  the  passenger  to  re- 
cover the  property.  In  the  opinion  of  the  court,  Mr.  Justice  Grey 
said:  "She  did  not  intrust  her  traveling  bag  to  the  exclusive 
custody  and  care  of  the  defendant's  servants,  but  kept  it  in  her 
own  immediate  possession  without  informing  the  defendant  of 
the  value  of  its  contents  until  after  it  had  dropped  from  her 
hands  through  the  open  window."  But  where  a  passenger  sur- 
rendered his  hand  baggage  to  the  agent  of  a  transfer  company 
to  be  conveyed  from  one  depot  to  another,  and  it  was  lost,  the 
company  was  held  liable;  this,  of  course,  rested  upon  the  fact 
of  the  control  of  the  baggage  being  in  the  transfer  company.^^ 

§  689.  Sleeping-car  companies. — The  duties  and  liabilities  of 
sleeping-car  companies  to  care  for  hand  baggage  and  personal 
effects  of  the  passenger  taken  into  their  cars  has  already  to  some 
extent  been  discussed.^^  The  question  is  one  of  negligence,  to  be 
determined  by  all  the  circumstances  of  the  particular  case.  It 
may  perhaps  be  said  that  greater  care  of  the  baggage  and  effects 
of  the  passenger  is  required  of  the  sleeping-car  company  than 
of  the  servants  employed  upon  the  ordinary  day-coach  of  a  rail- 
road company ;  that  is  to  say,  ordinary  diligence  in  the  one  case 
would  be  a  greater  degree  of  diligence  than  in  the  other,  because 
the  sleeping-car  company  holds  out  to  the  public  that  they  will 
assume  the  duty  of  caring  for  the  passenger  and  his  effects  which 
are  placed  in  the  care  of  their  servants. 

§  690.  Liability  for  theft  of  servants. — The  passenger  im- 
pliedly has  the  guaranty  of  the  company  that  its  servants  can 
be  trusted,  and  if  they  steal  from  the  passenger  his  baggage  or 
effects  the  company  is  liable.  Where  the  master,  by  contract  or 
by  operation  of  law,  is  boui^d  to  do  certain  acts,  he  cannot  excns- 
himself  from  liability  upon  the  ground  that  he  has  committed 
that  duty  to  another,  and  that  he  never  authorized  such  person 
to  do  the  particular  act.    Being  bound  to  do  the  act,  if  he  does 

33  Dawley  V.  Palace  Car  Co.,  169  35  Ante,  §  641  et  seq.;  Dawley 
Mass.  315.  V.  Palace  Car  Co.,  169  Mass.  315. 

34  Staub    V.    Kendrick,    121   Ind. 
226. 


764  CARRIERS    OF   PASSENGERS.  [§    692. 

it  by  another  he  is  treated  as  having  done  it  himself;  and  the 
fact  that  his  servant  or  agent  acted  contrary  to  his  instructions 
without  his  consent,  or  even  voluntarily,  will  not  excuse  him.^'' 

§  691.  A  high  degree  of  ordinary  diligence  required. — The 
liability  of  the  sleeping-car  company  for  the  baggage  of  its  pas- 
sengers is  not  that  of  an  insurer,  but  the  company  is  held  to  or- 
dinary diligence  and  watchfulness  over  the  effects  of  its  pas- 
sengers placed  in  its  custody;  and  it  may  be  said  that  this  ordi- 
nary diligence,  because  of  the  circumstances  and  surroundings, 
and  because  of  the  fact  that  the  passenger  has  submitted  his  ef- 
fects, if  not  his  own  safety,  to  the  watchful  care  and  diligence 
of  the  servants  of  the  sleeping-ear  company  at  night  while  he 
sleeps,  would  demand  a  very  high  degree  of  diligence.  All  his 
effects  are  surrendered  to  the  vigilance  and  watchfulness  of  the 
servants  of  the  company,  and  he  is  dependent  upon  them  for 
their  care  and  custody,  and  so  in  such  case  it  would  seem  that  it 
is,  at  all  events,  a  higher  degree  of  ordinary  care  that  will  be  re- 
quired of  the  company.'*^ 

§  692.  Mixed  custody  of  passenger  and  carrier — Is  the  lia- 
bility of  steamship  company  and  innkeeper  the  same? — A  dis- 
tinct and  separate  class  of  cases,  with  different  phases  of  lia- 
bility, are  cases  where  the  custody  of  the  baggage  may  be  said  to 
be  "a  mixed  custody  of  the  passenger  and  the  carrier;"  as,  for 
example,  where  the  baggage  is  placed  in  the  state-room  of  the 
passenger  upon  the  steamer  and  he  is  given  the  key  to  the  room, 
or  in  the  compartment  of  the  car  upon  which  he  is  being  con- 
veyed, which  he  occupies  exclusively  and  of  which  he  has  the 
entire  control.  So  great  is  the  similarity  between  an  inn  or  hotel 
and  a  passenger  steamship  where  the  passengers  are  roomed, 
boarded  and  cared  for  upon  their  voyage,  that  some  of  the  courts 
have  declared  that  it  is  a  floating  inn,  and  that  the  liability  of 
the  steamship  company  operating  these  great  lines  of  steamers 

36  Wood,  Master  and  Servant,  ger's  effects,  but  only  as  a  bailee 
sec.  321;  Pullman  Car  Co.  v.  for  hire.  Root  v.  Sleeping-Car 
Gavin,  93  Tenn.  53,  21  L.  R.  A.  Co.,  28  Mo.  App.  199;  Efron  v. 
298;  Pullman  Car  Co.  v.  Mathews,  Pullman  Car  Co.,  59  Mo.  App. 
74  Tex.  655;  Pullman  Car  Co.  v.  641;  Sleeping-Car  Co.  v.  Diehl,  84 
Martin,  95  Ga.  314,  29  L.  R.  A.  Ind.  474,  43  Am.  Rep.  102.  Bound 
498;  111.  Cent.  R.  Co.  v.  Handy,  63  to  use  reasonable  care,  etc.  Lewis 
Miss.  709.  V.     Sleeping-Car    Co.,     143     Mass. 

37  A  sleeping-car  company  is  not  267;  Carpenter  v.  Railway  Co., 
liable  as  an  insurer  of  a  passen-  124  N.  Y.  53. 


§    692.]  BAGGAGE  OR  THE  PASSENGER'S  EFFECTS.  765 

is  the  same  as  that  of  an  innkeeper.     The  similarity  certainly 
exists  and  the  argument  is  one  of  great  force.     A  room  is  as- 
signed to  the  passenger  where  he  can  sleep  at  night,  and  stay  if 
he  desires  through  the  day;  he  is  given  a  key  to  the  room,  and 
may  appropriate  it  as  fully  and  exclusively  as  does  a  guest  at  a 
hotel.    His  baggage  is  taken  to  his  room  as  it  is  at  a  hotel;  the 
servants  of  the  steamship  having  charge  of  this  department  have 
access  only  to  attend  to  the  wants  of  the  passenger  and  to  attend 
to  keeping  the  room  in  order  as  in  a  hotel;  when  he  leaves  his 
room  he  may  lock  the  door  and  take  with  him  the  key  as  at  a 
hotel ;  if  he  has  valuables  he  may,  and  is  generally  requested  to, 
deposit  them  with  the  purser  of  the  boat  for  safe-keeping;  his 
meals  are  served  in  the  dining-room  of  the  steamer,  and  he  lives 
upon  the  steamer  the  same  as  he  lives  at  a  hotel ;  the  custody  of 
his  baggage  is  a  mixed  custody  of  himself  and  the  carrier,  as  at 
a  hotel  it  is  a  mixed  custody  of  himself  and  the  hotel  proprietor 
or  his  servants.  The  authorities,  however,  do  not  agree  upon  this 
question,  but  it  would  seem  that  the  greater  force  of  reasoning, 
which  means  the  greater  weight  of  authority  if  not  the  greater 
number  of  cases,  is  with  the  contention  that  such  steamships 
are  liable  as  innkeepers,  though  some  of  the  authorities  contend 
with  a  considerable  degree  of  force  that  steamships  are  not  float- 
ing inns,  and  that  the  steamship  company's  liability  is  not  the 
same  as  that  of  an  innkeeper;  and  that  to  hold  the  steamship 
company  for  loss  of  baggage  that  is  in  the  custody  of  the  pas- 
senger it  is  necessary  to  show  that  the  carrier  was  guilty  of  neg- 
ligence which  resulted  in  its  loss  or  injury.^® 

The  supreme  court  of  Michigan  divided  upon  this  question  in 

38  An  ocean  steamship  company  pays  a  round  sum  for  transporta- 
is  not  responsible  as  a  common  tion,  board  and  lodging."  In  Ab- 
carrier  or  an  innkeeper  for  the  bott  v.  Bradstreet,  55  Me.  530,  it 
baggage  of  a  passenger  which  he  was  held  the  carrier  was  not  lia- 
keeps  in  his  own  possession  in  ble  for  money  stolen  from  tte 
his  state-room,  but  must  answer  pocket  in  absence  of  proof  that 
in  such  cases  for  its  negligence  the  robbery  was  by  one  of  the 
like  other  bailees  for  hire.  Amer-  employees.  Steamship  company 
ican  Steamship  Co.  v.  Bryan,  83  not  liable  for  wearing  apparel  or 
Pa.  St.  446.  And  Clark  v.  Burns,  money  which  is  not  delivered  to 
etc.  Co.,  118  Mass.  275,  held  "the  the  officer  of  the  boat  for  safe- 
owner  of  a  steamship  carrying  keeping.  Crystal  Palace  v.  Van- 
passengers  for  hire  is  not  an  inn-  derpool,  55  Ky.  302;  Del  Valle  v. 
keeper,    although    the    passenger  Richmond,  27  La.  Ann.  90. 


766  CARRIERS    OP    PASSENGERS.  [§    692. 

McKee  v.  Owen;^^  Judge  Christiancy  and  Judge  Cool ey  holding 
that  the  steamship  is  an  inn,  and  that  the  liability  of  baggage 
lost  or  injured  is  that  of  an  innkeeper-  The  opinion  of  Judge 
Christiancy  is  strong  and  lucid.  He  says  in  part:  "But  when 
a  steamer  is  fitted  up  with  regular  sleeping  apartments,  and 
all  the  appliances  for  boarding  and  lodging  her  passengers  as  at 
an  inn,  and  the  owners  or  managers  hold  themselves  out  to  the 
traveling  public  as  furnishing  such  accommodations,  and  by 
these  superior  advantages  induce  travelers  (as  they  naturally 
must)  to  prefer  this  to  the  less  comfortable  mode  of  traveling  by 
railroads  and  stage-coaches,  or  even  by  vessels  without  such  ac- 
commodations, when  they  receive  the  fare  of  a  passenger,  which 
includes  not  only  his  passage,  but  his  board  and  sleeping  room 
and  bed,  and  when  that  room  is  assigned  to  him  and  he  retires  to 
it  for  the  night,  the  whole  transaction,  it  seems  to  me,  carries 
with  it  an  invitation  to  make  use  of  the  room  and  the  bed  for  the 
purposes  and  in  the  manner  for  which  they  were  obviously  de- 
signed; in  other  words,  to  lay  aside  his  clothing  and  go  to  sleep 
there.  And  unless  he  is  expected  to  sleep  with  his  eyes  open, 
and  his  faculties  upon  the  alert,  he  is  invited  to  lay  aside  all  the 
vigilance  he  would  be  expected  to  exercise  when  awake,  and  to 
trust  himself  and  his  clothing  and  such  money  and  property  as 
he  may  have  about  him,  and  as  it  is  usual  for  passengers  to  carry 
in  their  clothing,  to  the  protection  afforded  by  the  room,  and  the 
vigilance  to  be  exercised  by  those  in  charge  of  the  boat.  And  the 
latter  must,  in  the  absence  of  any  usage,  request  or  notice  to  the 
contrary,  be  held  to  assent  that  the  passenger  shall  leave  such 
clothing  and  contents  at  any  convenient  place  in  the  room,  in- 
stead of  having  to  call  the  steward,  clerk  or  other  officer  or  serv- 
ant of  the  boat  to  take  it  into  his  actual  or  manual  custody  —  a 
proceeding  which  (as  it  must  take  place  after  the  passenger  is 
undressed)  would  be  somewhat  awkward  in  the  case  of  a  lady 
passenger  at  least.  And,  having  been  thus  invited  to  rely  upon 
the  protection  of  his  room,  and  their  vigilance  instead  of  his  own. 
the  invitation,  it  seems  to  me,  carries  with  it  an  assurance  thai 
they  will  be  responsible  in  the  meantime  for  all  losses  of  such 
clothing  and  contents,  from  which  he  might  by  his  own  vigilance 
have  protected  himself  when  up  and  awake.  If  they  do  not 
thereby  assume  the  responsibility,  then  it  is  no  'figure  of  speech,' 

39  15  Mich.  115-129. 


§    692.]  BAGGAGE  OR  THE  PASSENGER'S  EFFECTS.  767 

but  a  literal  truth,  to  say  that  by  their  invitation  the  passenger 
has  been  lulled  into  a  false  security.     I  express  no  opinion  upon 
the  question  whether  the  liability  of  the  defendants  in  respect 
to  the  loss  of  such  money  and  property  in  other  modes  or  from 
other  causes  would  be  commensurate  or  identical  with  that  of  an 
innkeeeper.     The  facts  of  this  case  do  not  call  for  an  opinion 
upon  a  question  as  broad  as  this.    But  so  far  as  relates  to  the 
facts  of  this  case,  the  loss  of  this  money  and  chain  in  the  man- 
ner and  under  the  circumstances  the  evidence  tended  to  prove, 
I  think  the  assurance  held  out  by  the  defendants  to  the  plaintiff 
is  the  same  as  that  held  out  by  the  innkeeper  to  a  guest  occupy- 
ing a  bed-room  at  his  inn;  and  that  the  responsibility  of  the  de- 
fendants for  the  loss  of  the  chain  and  so  much  of  the  money  as 
should  be  found  reasonable  for  the  expenses  of  the  journey  is 
the  same  as  that  of  the  innkeeper  for  a  loss  occasioned  in  the 
same  way;  and  that  the  responsibility  rests  upon  precisely  the 
same,  and  all  the  same  reasons  in  both  cases;  and  this,  whether 
the  money  and  chain  were  stolen  through  the  window  from  with- 
out, or  by  the  stranger  lady  who  had  been  assigned  to,  and  occu- 
pied the  room  with,  the  plaintiff,  without  any  choice  or  agency 
of  hers,  but  by  the  act  of  the  proper  authorities  of  the  boat.  Had 
the  lady  been  a  traveling  companion  of  the  plaintiff,  the  case,  as 
to  this  point,  would  have  been  different,  and  so,  probably,  if  she 
had  been  assigned  to  the  same  room  at  the  plaintiff' 's  request." 
A  late  case  in  New  York  {Adams  v.  Steamboat  Co.*^)  holds  to 
the  same  doctrine,  where  money  was  taken  from  the  clothing 
of  the  passenger  occupying  a  state-room  during  the  night,  the 
doors  being  locked  and  the  windows  fastened.     The  court  say: 
"The  relations  that  exist  between  a  steamboat  company  and  its 
passengers,  who  have  procured  state-rooms  for  their  comfort  dur- 
ing the  journey,  differ  in  no  essential  respect  from  those  that 
exist  between  the  innkeeper  and  his  guests.     The  passenger  pro- 
cures and  pays  for  his  room  for  the  same  reasons  that  a  guest 
at  an  inn  does.    There  are  the  same  opportunities  for  fraud  and 
plunder  on  the  part  of  the  carrier  that  were  originally  supposed 
to  furnish  a  temptation  to  the  landlord  to  violate  his  duty  to  the 
guest.    A  steamer  carrying  passengers  upon  the  water,  and  fur- 


40  151  N.  Y.  163,  34  L.  R.  A.  Smith  (N.  Y.),  453;  Mudgett  v. 
682;  Purvis  v.  Coleman,  21  N.  Y.  Bay  State,  etc.,  1  Daly  (N.  Y.), 
Ill;  Van  Horn  v.  Kermit,  4  E.  D.       157. 


768  CARRIERS    OF    PASSENGERS.  [§    694. 

nishing  them  with  rooms  and  entertainment,  is  for  all  practical 
purposes  a  floating  inn,  and  hence  the  duties  which  the  proprie- 
tors owe  to  the  passengers  in  their  charge  ought  to  be  the  same. 
No  good  reason  is  apparent  for  relaxing  the  rigid  rule  of  the 
common  law  which  applies  as  between  innkeeper  and  guest,  since 
the  same  considerations  of  public  policy  apply  to  both  rela- 
tions. ' ' 

§  693.  The  baggage  of  a  steerage  passenger. — The  baggage 
of  a  steerage  passenger  is  usually  taken  possession  of  by  the 
passenger,  and  his  possession  is  exclusive  to  himself,  thus  reliev- 
ing the  steamship  company  from  liability  as  an  insurer,  their  lia- 
bility only  resting  upon  proof  of  negligence  upon  the  part  of  the 
carrier  which  resulted  in  the  loss  or  injury  of  the  baggage.  And 
where  a  steerage  passenger  took  entire  charge  and  control  of  his 
baggage,  taking  it  into  the  steerage,  placing  it  under  his  berth 
and  fastening  it  to  his  berth  with  ropes,  and  during  the  voyage 
it  was  stolen,  it  was  held  that  the  steamship  company  was  not 
liable.*^ 

§  694.  Termination  of  liability. — The  object  of  the  contract 
to  carry  the  baggage,  which  we  have  seen  is  an  implied  contract, 
is  to  deliver  it  at  the  end  of  the  journey,  or  to  the  passenger 
who  procured  it  to  be  carried  where  he  shall  demand  its  delivery. 
Upon  the  part  of  the  passenger  it  is  presumed  that  he  is  anxious 
to  receive  it  at  once  upon  its  arrival;  upon  the  part  of  the  car- 
rier, that  he  is  ready  and  willing  to  deliver  it  to  the  passenger  at 
once  upon  its  arrival  at  the  place  of  destination.  The  liability 
of  the  carrier  terminates  upon  delivery  to  the  passenger  of  his 
baggage  in  good  condition  at  the  end  of  his  journey,  or  wherever 
it  may  be  called  for  by  the  passenger  and  delivered  to  him  by  the 
carrier.  So  it  follows  that  it  is  the  duty  of  the  carrier  to  safely 
carry  the  baggage,  and  of  the  passenger  to  at  once  upon  his  ar- 
rival at  his  destination,  or  within  a  reasonable  time,  to  call  for 
and  receive  it. 

The  authorities  are  to  the  effect,  with  but  very  little  if  any 
dissent,  that  it  is  the  duty  of  the  passenger  to  receive  the  baggage 
within  a  reasonable  time,  and  they  generally  hold  that  a  reason- 
able time  is  not  later  than  the  same  occasion  upon  which  he  ar- 
rives at  his  destination ;  that  it  would  not  be  a  reasonable  time 
where  the  passenger  waits  until  the  next  day  before  taking  the 

"Cohen  v.  Frost,  9  N.  Y.  Super.  Ct.  335. 


§    695.]  BAGGAGE  OR  THE  PASSENGER'S  EFFECTS.  769 

baggage  away.  And  so  it  was  held  that  where  a  passenger  who 
leaves  his  baggage  upon  a  depot  platform  merely  because  on  his 
arrival  after  eleven  o'clock  at  night  there  were  no  conveyances 
running  by  which  he  could  take  it  away,  and  it  was  burned  in 
the  depot  during  the  night,  that  the  railroad  company  was  not 
liable  as  a  common  carrier,  but  only  as  a  warehouseman.*-  The 
passenger  may  take  his  baggage  from  the  custody  of  the  carrier 
at  any  time  and  terminate  the  relation. 

§  695.  Failure  of  carrier  to  deliver  baggage. — The  liability 
of  the  carrier,  of  course,  depends  upon  its  failure  to  perform  its 
duty  toward  the  passenger,  and  so  if  he  fails  to  deliver  the 
baggage  to  the  passenger  when  demanded,  or  at  its  destination, 
he  would  be  liable.  If,  however,  the  failure  of  the  carrier  was 
the  result  of  the  fault  or  contributory  negligence  of  the  passen- 
ger, the  carrier  would  not  be  liable;  as  where  the  loss  occurred 
by  reason  of  the  passenger  taking  his  baggage,  without  the  con- 
sent of  the  officers  of  the  steamer,  to  his  state-room,  which  could 
not  be  locked  and  from  which  it  was  stolen,  it  was  held  the  car- 
rier was  not  liable.  But  if  the  loss  occurs  because  of  the  fault  of 
the  carrier,  and  there  is  no  contributory  fault  on  the  part  of  the 
passenger,  the  carrier  will,  of  course,  be  liable.  As  where  the 
baggage  or  property  committed  to  the  carrier  was  brought  by  its 
negligence  under  the  operation  of  natural  causes  that  worked  its 
destruction,  or  was  exposed  to  such  cause  of  loss,  it  was  held  that 
the  carrier  was  responsible.*^  And  so  it  would  follow  that  a 
common  carrier  would  not  be  exempted  from  liability  for  a  loss, 
even  though  it  takes  place  because  of  an  act  of  God,  if  the  car- 
rier has  been  guilty  of  any  previous  negligence  or  misconduct 
which  brings  the  property  into  contact  with  the  destructive 
forces  of  the  actu  Dei,  or  unnecessarily  exposes  it  thereto.** 

42  Railway  Co.  v.  Lyon,  123  Pa.  see    Chesapeake,    etc.    R.    Co.    v. 

St.   140.     The  responsibility  of  a  Beasley,    104    Va.    788,    52    S.    E. 

railroad  company  for  baggage  as  566,    where   baggage   retained   by 

a  carrier  after  it  reaches  the  des-  the  carrier  to  weigh,  and  passen- 

tination    of    the    passenger    con-  ger  is  hindered  in  getting  it.    For 

tinues   only   until   he    has   had   a  collection  of  cases  on  this  ques- 

reasonable   time   and   opportunity  tion,   see  notes   to  above  case,   3 

to  take  it  away.     Railway  Co.  v.  L.  R.  A.   (N.  S.)   183. 

McGahey,    63   Ark.    344,   36   L.   R.  43  Wald  v.  Railway  Co.,  162  111. 

A.    781;    Gleason   v.    Transp.    Co.,  545,  35  L.  R.  A.  356. 

32  Wis.  85,  14  Am.  Rep.  716.    But  44  Wald  v.  Railway  Co.,  supra. 

49 


CHAPTER  VI. 


ACTIONS  AGAINST  COMMON  CARRIERS. 


I.  Actions  Against  Common  Cab- 
BiEEs  OF  Goods. 

§  696.  The  basis  of  the  actions. 

697.  As  to  what  actions  will  lie. 

698.  Even  if  there  is  a  spe- 
cial contract. 

699.  The  advantages  of  the  ac- 

tion ex  delicto. 

700.  For   refusal   to   carry 

the  goods. 

701.  The  parties. 

702.  The  consignee. 

703.  One  having  a  special 

property  in  the  goods. 

704.  The  consignor. 

705.  The  defendant. 

THE    PLEIADINGS. 

706.  Pleadings    follow    general 

rules. 

707.  Defenses. 

THE   PROOFS. 

708.  What  proofs  should  be  ad- 

duced. 

709.  Negligence. 

710.  Defendant's  proofs. 

DAMAGES. 

711.  Of    what    they    generally 

consist. 

712.  Actual,     exemplary,     puni- 

tive or  vindictive  dam- 
ages. 

713.  Exemplary    damages     con- 

fined to  liberal,  compen- 
satory or  actual  dam- 
ages. 

714.  Liability  of  principal 

or  master  for  acts  of 
agents  or  servants. 

715.  Damages  for  refusal  to  re- 

ceive and  transport. 


§  716.  For  loss  or  injury  in  tran- 
sit. 

717.  Shipper  bound  by  the  value 

placed  upon  his  goods 
when  shipped. 

718.  Where   the   goods   are  not 

merchandise  and  not 
marketable. 

719.  Goods   shipped  to  be 

delivered  on  contract  of 
sale. 

720.  Failure  to  deliver  at 

time  specified  or  within 
reasonable  time  —  Rea- 
sonable delay. 

721.  Failure  to  deliver  and  mis- 

delivery. 

II.  Actions  Against  Caeeiebs  of 
Passengers. 

722.  Survival     of     actions     for 

personal  injuries. 

723.  When  the  injury  does  not 

result  in  death. 

THE    pleadings. 

724.  Based  upon  what. 

725.  The  answer  or  plea  of  the 

defendant. 

THE    evidence. 

726.  What  must  be  proven. 

727.  Presumption  of  negligence. 

728.  Contributory  negligence. 

DAMAGES. 

729.  General  rules  applicable. 

730.  Proximate   or   remote   con- 

sequences. 

731.  Actual,     exemplary,     puni- 

tive or  vindictive  dam- 
ages. 


§    697.]  ACTIONS    AGAINST    COMMON    CARRIERS.  771 

Actions  against  common  carriers,  for  the  purpose  of  our  dis- 
cussion, will  be  divided  into  ( 1 )  actions  against  the  common  car- 
riers of  goods,  and  (2)  against  carriers  of  passengers. 


Actions  Against  Common  Carriers  op  Goods. 

§  696.  The  basis  of  the  actions. — These  actions  are  based 
upon  either  breach  of  duty — that  duty  which  the  carrier  owes 
to  the  public  as  a  quasi-p-ahlie  servant,  as  well  as  the  duty  he 
owes  to  the  owner  of  the  goods  or  the  shipper,  and  are  therefore 
actions  ex  delicto;  or  upon  the  contract  of  affreightment,  either 
express  or  implied,  and  therefore  actions  ex  contractu. 

§  697.  As  to  what  actions  will  lie. — At  an  early  period  in 
the  common  law,  actions  against  common  carriers  were  based 
almost  entirely  upon  a  breach  of  their  duty  to  the  public,  and 
were  therefore  actions  ex  delicto,  or  actions  in  torts.  The  theory 
upon  which  this  rested  was  that  there  was  a  public  duty  imposed 
upon  carriers  that  was  greater  and  of  more  importance  than  any 
private  contract  with  their  customers,  and  a  breach  of  that  duty 
was  more  grave  than  the  breach  of  a  private  contract  and 
sounded  in  tort,  and  could  only  be  answered  for  in  an  action  ex 
delicto.  In  Bretherton  v.  Wood  ^  we  have  an  expression  from 
the  English  court  which  defines  the  early  common-law  rules  gov- 
erning actions  against  carriers.  The  court  say:  "This  action 
is  on  the  case  against  a  common  carrier,  upon  whom  a  duty  is 
imposed  by  the  custom  of  the  realm,  or,  in  other  words,  by  the 
common  law,  to  carry  and  convey  their  goods  or  passengers  safely 
and  securely  so  that  by  their  negligence  or  default  no  injury  or 
damages  happen.  A  breach  of  this  duty  is  a  breach  of  the  law, 
and  for  this  breach  an  action  lies,  founded  on  the  common  law, 
which  action  wants  not  the  aid  of  a  contract  to  support  it. ' '  But 
the  early  English  opinion  that  seemed  at  least  to  hold  to  a  strong 
preference  for  the  action  on  the  case  instead  of  the  action  of 
assumpsit  has  long  since  been  abandoned,  and  the  action  of  as- 
sumpsit upon  the  contract,  express  or  implied,  to  safely  carry 
and  deliver  the  goods,  has  come  to  be  more  generally  used. 

It  is  said  that  the  departure  from  the  practice  established  in 

13  Brod.  &  Bing.  (Eng.)  54;  Coggs  v.  Bernard,  2  Ld.  Raym.  909; 
Smith  V.  Seward,  2  Pa.  St.  342. 


772  CARRIERS    OF    PASSENGERS.  [§    699. 

England  was  first  settled  in  the  case  of  Dale  v.  Hall,-  where  it 
was  held  that  "the  permission  to  carry  safely  need  not  be 
proved;  the  law  raises  it.  The  breach  is  very  right  that  he  did 
not  deliver  them  safely,  but  so  negligently  kept  them  that  they 
were  spoiled."  In  Smith  v.  Setvard^  the  court  say:  "It  was 
originally  the  practice  to  declare  against  the  carrier  only  on  the 
custom  of  the  realm;  but  it  has  long  been  established  that  the 
plaintiff  may  declare  in  case  or  assumpsit,  at  his  election ;  and  it 
is  usual  to  declare  in  the  latter." 

The  right  of  action  against  the  carrier  may  now  be  either  in 
tort  for  a  breach  of  his  public  duty,  or  it  may  be  in  assumpsit 
for  a  breach  of  the  contract  of  carriage;  either  of  these  actions 
may  be  brought  by  the  plaintiff,  as  he  may  choose.  In  Express 
Co.  V.  McVeigh  *  it  was  said:  "AVhen  there  is  a  public  employ- 
ment, from  which  arises  a  common-law  duty,  an  action  may  be 
brought  in  tort,  although  the  breach  of  duty  assigned  is  the  do- 
ing or  not  doing  something  contrary  to  an  agreement  made  in  the 
course  of  such  employment,  by  the  party  on  whom  such  general 
duty  is  imposed. ' ' 

§  698.  Even  if  there  is  a  special  contract. — And  if 

there  is  a  special  contract  to  carry,  the  option  still  remains  to 
the  plaintiff,  and  he  may  bring  his  action  either  ex  delicto  or  ex 
contractu,  whichever  he  chooses,  for  a  breach  of  duty  to  carry 
and  safely  deliver,  or  upon  the  special  contract.^ 

§  699.  The  advantages  of  the  action  ex  delicto. — There  are 
no  doubt  some  advantages  to  the  plaintiff  in  bringing  the  action 
ex  delicto.  As,  for  example,  where  there  is  uncertainty  as  to  the 
party  defendants,  the  action  ex  delicto  will  not  be  defeated  for 
non- joinder  or  misjoinder  of  defendants;  the  plaintiff  can  have 
his  judgment  against  all  of  them,  or  any  of  them  against  whom 
he  has  been  able  to  make  a  ease  by  his  proofs.  Nor  is  it  necessary 
to  set  out  so  fully  and  particularly  the  facts  and  circumstances 
in  the  declaration  as  it  would  be  if  he  declared  upon  a  contract.* 
And  so  in  actions  for  delay  in  transporting  goods,  for  negligence 
or  misfeasance  in  delivering  them  after  transportation,  or  in  an 
action  to  recover  excessive  charges,  the  plaintiff  may  bring  the 

2  1  Wills.  281.  260;  Oxley  v.  Railway  Co.,  65  Mo. 

3  3  Pa.  St.  343  630. 

*  20  Grat.  (Va.)  264.  ^  Weed     v.     Railway     Co.,     19 

5  Nicoll  V.  Railway  Co.,  89  Ga.      Wend.  534. 


§    701.]  ACTIONS    AGAINST    COMMON    CARRIERS.  773 

action  in  tort,  ex  delicto,  or  an  action  upon  the  contract  implied 
or  expressed;  as,  for  example,  for  delay  in  transportation,  the 
action  may  be  upon  the  implied  contract  to  safely,  and  within  a 
reasonable  time,  transport  and  deliver  the  goods;  or  it  may  be 
upon  a  breach  of  duty  upon  the  part  of  the  carrier  by  reason 
of  his  failure  to  do  so,  which  is  considered,  for  the  purpose  of 
such  action,  a  public  duty  of  the  carrier.  As  we  have  seen,  it  is 
the  duty  of  the  carrier  to  deliver  the  goods  to  the  consignee,  or 
to  his  order,  and  for  failure  to  do  so,  or  for  a  misdelivery,  he 
would  be  liable.  And  in  such  case  the  action  may  be  upon  the 
implied  contract,  or  it  may  be  for  a  breach  of  duty  upon  the  part 
of  the  carrier.  The  carrier  is  only  entitled  to  reasonable  com- 
pensation ;  and  this  is  so  even  though  defendant  in  carrying  the 
goods  is  governed  by  the  common-law  rule  only,  because  demand- 
ing and  receiving  excessive  charges,  and  especially  when  de- 
manded before  he  will  consent  to  carry  the  goods,  by  the  com- 
mon law,  would  render  him  guilty  of  a  breach  of  duty  and  liable 
in  an  action  ex  delicto,  or,  as  said,  at  the  option  of  the  plaintiff, 
to  an  action  ex  contractu  as  for  money  had  and  received.'^ 

§  700.  For  refusal  to  carry  the  goods. — While  it  is  the 

duty  of  a  common  carrier  to  receive  and  carry  the  goods  of  all 
who  present  them  for  carriage,  subject  to  the  exceptions  hereto- 
fore noted,  there  is  no  implied  contract  to  receive  them,  and  a 
refusal  to  do  so  would  be  a  breach  of  duty  on  the  part  of  the 
carrier,  and  the  action  for  such  refusal  would  of  necessity  be  an 
action  ex  delicto;  but  if  there  had  been  a  special  contract  to  re- 
ceive and  carry  the  goods,  and  the  carrier  refused  to  carry  them, 
then  we  need  not  say  that  an  action  would  lie  for  such  carriage 
ex  contractu  for  failure  to  comply  with  the  contract. 

§  701.  The  parties. — The  general  rules  applicable  in  deter- 
mining who  shall  be  parties  to  actions  apply  in  actions  against 
common  carriers  of  goods,  and  no  different  or  other  rules  apply. 
The  plaintiff  must  be  one  in  whom  is  vested  the  legal  right  to 
compensation  or  damages ;  the  real  party  in  interest  w^hose  rights 
have  been  violated,  or  whose  property  has  been  lost  or  injured, 
or  who  is  entitled  to  the  performance  of  the  contract  or  duty  in 
question  in  the  particular  case,  or  the  assignee  of  such  a  party 
or  his  legal  representatives.  A  leading  case  upon  this  subject, 
which  has  been  followed  and  cited  very  generally,  is  the  early 

7  Daws  V.  Peck,  8  T.  R.  330. 


774  CARRIERS    OF   PASSENGERS.  [§    702. 

English  case  of  Daws  v.  Pcck,^  where  the  subject  was  very  gen- 
erally discussed  by  Lord  Kenyon.  In  rendering  the  opinion  he 
said:  "I  cannot  subscribe  to  one  part  of  the  argument  urged 
on  behalf  of  the  plaintiff,  namely,  that  the  right  of  property  on 
which  this  action  is  founded  is  to  fluctuate  according  to  the  choice 
of  the  consignor  or  consignee,  and  that  consequently  either  of 
them  may  at  his  pleasure  maintain  an  action  against  the  carrier 
for  the  non-delivery  of  the  goods.  In  my  opinion  the  legal  rights 
of  the  parties  must  be  certain  and  depend  upon  the  contract  be- 
tween them,  and  cannot  fluctuate  according  to  the  inclination  of 
either.  This  question  must  be  governed  by  the  consideration  in 
whom  the  legal  right  was  vested;  for  he  is  the  person  who  has 
sustained  the  loss,  if  any,  by  the  negligence  of  the  carrier,  and 
whoever  has  sustained  the  loss  is  the  proper  party  to  call  for 
compensation  from  the  person  by  whom  he  has  been  injured." 

§  702.  The  consignee. — The  legal  presumption  is  that 

the  consignee  is  the  owner  of  the  goods,  and  for  their  loss  or  in- 
jury is  entitled  to  damages;  but  this  presumption  may  be  over- 
come by  proof  of  the  real  facts  as  to  ownership.  The  question 
that  determines  who  is  the  proper  party  plaintiff  is,  then :  Wlio 
is  the  owner  of  the  goods,  or  upon  whom  is  the  risk  of  the  ship- 
ment; who  is  the  injured  party  in  case  of  loss  or  damage  to  the 
property?  Such  an  owner  or  such  a  party  can  sustain  the  ac- 
tion, and  if  the  facts  show  that  that  one  is  not  the  consdgnee, 
then  some  other  one  who  sustained  such  like  relations  to  the 
goods  should  bring  the  action.  The  person  who  makes  the  con- 
tract to  ship  the  goods  may  not  always  be  the  owner  or  the  parly 
in  interest;  his  relation  may  be  such  that  he  would  not  suffer 
loss  or  damage  if  the  property  was  destroyed  or  injured,  but  if 
he  does  occupy  such  a  relation,  then  he  would  be  properly  a 
party  plaintiff.  This  question  was  fully  treated  in  a  leading 
case  in  Massachusetts,^  where  the  court  discussed  the  leading 
cases  upon  the  subject.  The  court  &ay:  "There  is  no  doubt  that 
the  party  who  was  owner  at  the  time  or  becomes  owner  of  the 
goods  afterwards,  by  assignment  of  the  shipper  or  otherwise, 
and  who  was  consignee,  indorsee  of  the  bill  of  lading,  or  lawful 
holder  of  a  bill  of  lading  in  blank,  and  who  really  sustains  the 
damage,  may  maintain  an  action  against  the  ship-owner,  not  be- 

8  7  Term  Rep.  330.  al.,   8  Gray   (Mass.),  281;    Congor 

9  Blanchard    et   al.    v.    Page    et     v.  Railway  Co.,  17  Wis.  477. 


§    702.]  ACTIONS   AGAINST   COMMON    CARRIERS.  775 

cause  he  has  any  contract  with  him  for  the  carriage,  but  be- 
cause the  ship-owner  has  the  goods  lawfully  in  his  possession; 
it  has  become  his  duty  to  carry  them  safely  and  deliver  them 
to  the  consignee,  subject  only  to  a  lien  for  his  freight;  and,  if 
the  consignee  is  ready  to  discharge  that  lien  by  a  payment  or 
tender  of  that  freight,  the  refusal  of  the  carrier  to  deliver  the 
goods  to  such  consignee  is  a  breach  of  duty,  and  a  wrong  done 
him,  for  which  an  action,  either  in  tort  for  the  conversion,  or  in 
assumpsit  upon  the  implied  promise  to  perform  such  duty,  may 
be  maintained."  And  in  Scammon  v.  Wells,  Fargo  &  Co}'^  it 
was  held  that  "a  carrier  has  the  right  to  assume  that  the  con- 
signee is  the  owner  of  goods  consigned,  and  to  settle  with  him 
therefor,  if  he  has  been  robbed  thereof,  in  the  absence  of  notice 
that  the  consignor  was  the  owner  of  the  property."  The  court 
of  Pennsylvania  ^^  held  that  the  rule,  that  a  consignee  of  goods 
delivered  to  a  common  carrier  for  transportation  might  sustain 
an  action  for  failure  to  transport  or  deliver  them,  would  hardly 
admit  of  a  doubt,  and  say :  ' '  The  doubt  has  rather  been  whether 
the  action  could  be  maintained  in  the  name  of  the  consignor. 
And  though  it  has  been  ruled  that  it  may  be  when  the  property 
in  the  goods  is  proved  to  have  remained  in  the  consignor,  yet 
this  is  not  at  all  in  conflict  with  the  right  of  the  consignee  to 
sue  when  there  is  no  such  proof  of  ownership. ' ' 

The  New  York  court  has  held  that  "the  presumption  of  law 
is  that  the  consignee  is  the  owner  of  the  goods  in  the  absence 
of  any  evidence  on  the  subject,  and  is  the  proper  party  to  sue 
for  their  injury  or  loss. ' '  ^^  And  in  Illinois,  in  the  case  of  Mer- 
chants,' etc.  Co.  V.  Smith, ''■^  it  was  held  that  ''when  goods  are 
consigned  without  reservation  on  the  part  of  the  consignor,  the 
legal  presumption  is  that  the  consignee  is  the  OAvner,  and  in.  case 
of  a  loss  an  action  against  the  carrier  is  properly  brought  by 
the  consignee."  The  legal  presumption  is,  and  it  may  be  said 
that  this  is  the  conclusion  of  the  authorities  generally,  that  upon 
the  delivery  of  the  goods  to  a  common  carrier  without  any  reser- 

10  84  Cal.  311.  Saltus,    15    Wend.    474;    Aug.    on 

iiArbuckle     v.     Thompson,     37  Car.  497,  and  cases  cited;  Thomp- 

Pa.  St.  170.  son  v.   Fargo,   49   N.   Y.   188,  and 

12  Krulder  v,  Ellison  et  al.,   47  see  cases  cited  in  brief  and  opin- 

N.  Y.  36,  citing  Sweet  V.  Barney,  ion. 

23  N.  J.  235;    Price  v.  Powell,  3  i3  76  111.  542;  Pa.  Co.  v.  Holder- 

Comst.    (N.    Y.)    322;    Everett   v.  man,  69  Ind.  18. 


776  CARRIERS    OF   PASSENGERS.  [§    707. 

vation  or  notice  to  the  contrary,  the  title  to  the  goods  vests  in 
the  consignee,  and  the  carrier  has  a  right  to  rely  upon  this  pre- 
sumption. And  so  it  was  held  that  a  carrier  had  a  right  to  set- 
tle with  the  consignee  in  a  case  where  the  property  was  stolen 
or  destroyed,  and  that  the  consignee  could  sustain  an  action 
where  property  was  lost  by  the  carrier.^* 

§  703.  One  having  a  special  property  in  the  goods. — 

The  governing  principle  as  to  who  can  sustain  the  action  is 
based  upon  an  interest  in  the  property.  That  interest  may  be 
ownership,  or  it  may  be  a  special  interest.  As,  for  example,  an 
undisclosed  agent  may  sustain  the  action,  or  a  factor,  a  broker, 
a  warehouseman,  or  person  who  has  a  special  property  in  the 
goods,  and  a  recovery  by  such  an  one  will  be  a  bar  to  a  recovery 
by  the  real  owner.^^  But  the  real  owner  because  of  this  would 
not  be  deprived  of  the  right  to  bring  an  action  for  damage  or 
injury  to  the  goods  while  in  the  hands  of  such  an  agent. ^® 

§  704.  The  consignor. — Where  the  goods  are  delivered 

to  the  carrier  by  the  consignor,  who  has  taken  therefor  a  bill 
of  lading  or  a  contract  for  shipment,  an  action  can  be  sustained 
by  such  consignor  by  reason  of  the  contract,  and  it  has  been 
held  that  where  there  is  no  express  contract  he  can  sustain  an 
action  upon  the  implied  contract  for  shipment.  This  question 
was  before  the  court  in  the  case  of  Daws  v.  Peck  ^^  and  in  Blanch- 
ard  V.  Page,^^  and  so  decided.  In  Finn  v.  Railway  Co}^  it  was 
held  that  ^'a  consignor  who  delivered  goods  to  a  carrier  can 
maintain  an  action  of  contract  against  him  for  their  loss  if  there 
is  no  relation  between  the  carrier  and  the  consignee  other  than 
that  which  results  from  the  carrier's  possession  of  the  goods, 
and  in  such  action  can  recover  the  full  value  of  the  property, 
although  it  be  the  property  of  the  consignee,  if  no  action  against 
the  carrier  has  been  commenced  by  the  consignee,  and  will  hold 
the  proceeds  in  trust  for  the  consignee 's  indemnity. ' '  The  court 
in  discussing  the  question  say:  "The  liabilities  of  a  common 

i*Dyer     v.     Railway     Co.,     51  N.    Y.    343.      See    Blum    v.    The 

Minn.  345,  53  N.  W.  714,  and  see  Caddo,    Fed.     Cas.    No.     1,573,     1 

cases    cited    in    opinion    of    the  Woods,  64;    Meigs  v.  Hayden,  86 

court.  Fed.  926. 

15  Hutch,  on  Car.,  sec.  721,  and  i7  8  T.  R.  330. 
see  cases  cited;    Denver,   etc.   R.  is  8  Gray,  281. 

Co.  V.  Frame,  6  Colo.  382.  i»  112     Mass.     524,       See     au- 

16  N.  J.  etc.  Co.  V.  Bank,  6  How.      thorities  cited  in  the  opinion. 
(U.  S.)   344;    Gr-een  v.  Clarke,  12 


§    704.]  ACTIONS    AGAINST    COMMON    CARRIERS.  777 

carrier  of  goods  are  various,  and,  when  not  controlled  by  express 
contract,  they  spring  from  his  legal  obligations,  according  to 
the  relations  he  may  sustain  to  the  parties,  either  as  employers, 
or  as  owners  of  the  property.  Prima  facie  his  contract  of  serv- 
ice is  with  the  party  from  whom,  directly  or  indirectly,  he  re- 
ceives the  goods  for  carriage;  that  is,  with  the  consignor.  His 
obligation  to  carry  safely,  and  deliver  to  the  consignees,  sub- 
jects him  to  liabilities  for  any  failure  therein,  which  may  be  en- 
forced by  the  consignees  or  by  the  real  owners  of  the  property, 
by  appropriate  actions  in  their  own  names,  independently  of  the 
original  contract  by  which  the  service  was  undertaken.  Such 
remedies  are  not  exclusive  of  the  right  of  the  party  sending  the 
goods  to  have  his  action  upon  the  contract  implied  from  the  de- 
livery and  receipt  of  them  for  carriage.  .  .  .  When  carry- 
ing goods  from  seller  to  purchaser,  if  there  is  nothing  in  the  re- 
lations of  the  several  parties  except  what  arises  from  the  fact 
that  the  seller  commits  the  goods  to  the  carrier  as  the  ordinary 
and  convenient  mode  of  transmission  and  delivery,  in  execution 
of  the  order  or  agreement  of  sale,  the  employment  is  by  the  sel- 
ler, the  contract  of  service  is  with  him,  and  actions  based  upon 
that  contract  may,  if  they  must  not  necessarily,  be  in  the  name 
of  the  consignor.  If,  however,  the  purchaser  designates  the  car- 
rier, making  him  his  agent  to  receive  and  transmit  the  goods, 
or  if  the  sale  is  complete  before  delivery  to  the  carrier,  and  the 
seller  is  made  the  agent  of  the  purchaser  in  respect  to  the  for- 
warding of  them,  a  different  implication  would  arise,  and  the 
contract  of  service  might  be  held  to  be  with  the  purchaser.  This 
distinction,  we  think,  must  determine  whether  the  right  of  action 
upon  the  contract  of  service,  implied  from  the  delivery  and  re- 
ceipt of  goods  for  carriage,  is  in  the  consignor  or  in  the  con- 
signee. ' ' 

The  doctrine  that  the  consignor  may  bring  an  action  founded 
upon  the  contract  of  affreightment  has  been  carried  to  the  extent 
that  such  an  action  may  be  sustained  even  though  the  plaintiff 
has  no  interest  in  the  goods,-^  the  action  resting  entirely  upon 
his  contract  with  the  carrier,  and  therefore  must  be  an  action 
of  assumpsit,  and  that  in  such  an  action  he  may  recover  the  full 
damages  resulting  from  loss  or  injury  to  the  property,  but  that 

20  Hutch,  on  Car.,  sec.  724,  and       P.     146;     Thompson    v.    Railroad 
cases  cited;  American  Roofing  Co.      Co.,  11  Tex.  App.  145. 
T.   Memphis,   etc.    Co.,   5    Ohio   N. 


778  CARRIERS    OP    PASSENGERS.  [§    70T. 

such  recovery  is  in  trust  and  for  the  benefit  of  the  owner  of  the 
goods,  ^^ 

§  705.  The  defendant. — It  goes  without  saying  that  the 

party  defendant  must  be  the  carrier  who  has  undertaken  the 
transportation  of  the  goods,  either  upon  an  express  or  implied 
contract  of  shipment,  and  not  his  servants  or  agents.  If  either 
the  servant  or  agent  of  a  carrier  should  undertake  the  trans- 
portation of  goods,  that  is  without  the  scope  of  the  business  of 
the  carrier,  and  without  any  authority  from  the  carrier,  it  has 
been  held  in  such  case  that  the  agent  or  servant  would  be  lia- 
ble.^^  An  exception,  however,  has  been  recognized  in  the  case 
of  a  master  of  a  ship,  who  it  has  been  held  may  be  regarded  as 
a  common  carrier,  and  liable  with  the  owner  of  the  vessel  for 
safe  transportation  of  the  property.^^ 

THE   PLEADINGS. 

§  706.  Pleadings  follow  general  rules. — The  pleadings  in  ac- 
tions against  carriers  may  be  said  to  follow  the  general  rules 
upon  this  subject.  As  we  have  seen,  the  action  may  be  eithv^r 
upon  the  contract  in  an  action  ex  contractu  or  for  a  breach  of 
duty  in  an  action  ex  delicto.  If  the  action  is  upon  the  contract 
the  declaration  or  petition,  as  the  case  may  be,  should  set  out  a 
contract,  alleging  the  breach  and  the  damages  as  is  usual  in 
such  cases.  If  the  action  is  ex  delicto,  the  relation  of  the  par- 
ties, the  duty  of  the  carrier,  his  failure  to  perform  that  duty, 
and  the  resulting  damages  should  be  clearly  and  logically  set 
forth. 

§  707.  Defenses. — And  so  it  may  be  said  of  the  de- 
fenses, that  there  is  nothing  unusual  in  the  pleadings  on  the 
part  of  the  defendant.  It  is  only  necessary  to  know  what  would, 
constitute  a  defense,  and  when  and  how  it  can  be  pleaded.  There 

21  Hutch,  on  Car.,  sec.  730,  and  whether  the  transportation  be 
cases  cited.  from    port    to    port    within    the 

22  Elkins  V.  Railway  Co.,  23  N.  state,  or  beyond  the  sea,  at  home 
H.  275;  Citizens'  Bank  v.  Steam-  or  abroad;  and  they  are  answer- 
boat  Co.,  2  Story,  17.  able,  as  well  by  the  marine  law 

23  Elliott  V.  Russell  &  Lewis,  10  as  by  the  common  law  of  Eng- 
Johns,  1  held  that  "masters  and  land,  for  all  losses,  not  arising 
owners  of  vessels,  who  under-  from  inevitable  accidents,  or  such 
take  to  carry  goods  for  hire,  as  could  not  be  foreseen  or  pre- 
are    liable    as    common    carriers,  vented." 


§    710.]  ACTIONS    AGAINST    COMMON    CARRIERS.  77& 

are  matters  of  special  defense  which  must  be  set  forth  specially, 
for  the  plaintiff  is  entitled  to  notice  of  such  defenses;  but  all 
this  is  regulated  by  the  rules  applicable  to  pleading,  and  there 
are  no  rules  peculiar  to  actions  against  common  carriers. 

THE  PROOFS. 

§  708.  What  proofs  should  be  adduced. — We  may  say  of 

the  rules  governing  the  evidence  in  such  actions  as  we  have 
said  of  the  pleadings,  that  there  are  no  rules  peculiar  to  actions 
against  carriers.  The  material  allegations  of  the  petition  or  dec- 
laration must  be  proved;  in  other  words,  the  case  alleged  must 
be  substantiated.  Whether  the  action  be  ex  cmitractu  or  ex  de- 
licto it  will  be  necessary  to  prove  a  delivery  of  the  goods  by  the 
shipper  to  the  carrier,  and  an  undertaking  on  his  part  to  carry 
them  as  alleged  in  the  declaration  or  petition,  a  failure  to  per- 
form such  undertaking  on  his  part,  and  the  loss  or  injury  by 
reason  of  such  failure  by  way  of  damages. 

§  709.  Negligence. — The  loss  or  injury  must  be  shown  to  be 
the  result  of  the  negligence  alleged,  and  in  such  cases  the  owner 
or  shipper  is  entitled  to  the  benefit  of  the  presumptions  of  neg- 
ligence that  usually  obtain  in  such  cases;  as,  for  example,  where 
it  is  shown  that  the  goods  were  delivered  for  shipment  and  the 
carrier  undertook  to  transport  them,  that  they  have  not  been  re- 
ceived after  a  reasonable  time  and  are  not  accounted  for;  or  if 
the  goods  are  received  in  a  damaged  condition,  having  been  de- 
livered to  the  carrier  in  good  condition,  the  presumption  is  that 
the  loss  or  injury  resulted  from  the  negligence  of  the  carrier. 

§  710.  Defendant's  proofs. — The  carrier  by  way  of  defense 
may  show  that  the  loss  or  injury  was  caused  by  the  act  of  God 
or  the  public  enemy,  or  any  of  the  causes  which  we  have  seen 
will  excuse  him  from  liability,  and  in  such  case  it  will  be  pre- 
sumed that  his  negligence  or  acts  did  not  contribute  to  the  loss, 
and  the  burden  of  showing  that  the  damage  was  not  the  result 
alone  of  one  of  the  causes  which  excuse  the  carrier,  but  that  the 
carrier's  acts  contributed  to  the  result,  is  upon  the  plaintiff.  In 
other  words,  the  presumption,  in  the  absence  of  proof,  in  such 
cases,  is  that  the  carrier  performed  his  duty;  that  the  loss  or 
injury  was  occasioned  by  an  act  of  God,  or  was  the  result  of 
such  causes  as  excuse  his  liability  if  he  is  not  negligent,  and  the 
burden  of  showing  that  the  loss  was  not  alone  from  such  causes. 


780  CARRIERS    OF    PASSENGERS.  *  [§    712. 

but  that  the  negligence  of  the  carrier  contributed  to  the  loss,  is 
upon  the  plaintiff.  Several  of  the  sitates  have,  however,  held 
the  rule  to  be  otherw^ise:  that  the  carrier  must  not  only  show 
that  the  damage  resulted  from  the  act  of  God,  or  from  some  of 
the  causes  which  excuse  him,  but  must  further  show  that  his  acts 
in  no  way  contributed  to  the  loss.  This,  however,  cannot  be  said 
to  be  the  weight  of  authority.-* 

DAMAGES. 

§  711.  Of  what  they  generally  consist. — Damages  are  usu- 
ally but  compensation  for  the  injury  or  loss  to  the  plaintiff  re- 
sulting from  a  breach  of  the  contract  of  shipment,  or  from  fail- 
ure to  perform  a  duty  which  the  carrier  is  legally  bound  to  per- 
form in  the  matter  of  the  shipment  of  the  goods.  They  consist 
of  the  amount  of  money  that  will  compensate  the  plaintiff  for 
Ms  loss,  and  this  amount  must  be  shown  by  the  circumstances 
in  each  particular  case.  As,  for  example,  in  a  case  where  the 
carrier  refuses  to  receive  and  transport  the  goods,  for  loss  or 
injury  to  the  goods  while  in  transit,  for  failure  to  properly  de- 
liver the  goods  to  the  consignee  at  the  place  of  delivery,  for  de- 
livery of  the  goods  to  the  wrong  person,  for  delay  in  the  ship- 
ment, and  such  like  obligations  as  rest  upon  the  carrier.  From 
the  mere  statement  of  these  obligations  it  will  be  seen  that  the 
measure  of  damages  is  very  different  in  the  different  classes 
mentioned. 

§  712.  Actual,  exemplary,  punitive  or  vindictive  damages.— 
Damages  are  usually  said  to  be  either  actual,  exemplary,  puni- 
tive or  vindictive,  but  there  is  some  diversity  in  the  opinions  of 
the  courts  upon  the  question  of  the  kind  of  damages  that  may  be 
recovered  against  carriers.  Some  very  strong  reasons  are  ad- 
vanced by  a  large  number  of  the  supreme  courts  of  the  states 
and  of  the  United  States,  urging  that  exemplary,  punitive,  and 
even  vindictive  damages  may  be  recovered  in  cases  where  the 
proof  shows  a  wanton  or  malicious  invasion  of  the  plaintiff's 
rights,  or  where  there  has  been  oppression  or  vindictiveness  on 
the  part  of  the  defendant,  while  others  of  the  courts  hold  that 
only  actual  or  compensatory  damages  can  be  recovered,  yielding, 
however,  this  much :  that  in  case  of  wantonness  or  maliciousness, 
or  oppressive  and  vindictive  action  on  the  part  of  the  defendant 
24  See  Hutch,  on  Car.,  sees.  665,  667,  and  notes. 


§    712.]  ACTIONS    AGAINST    COMMON    CARRIERS.  781 

carrier,  the  compensation  should  be  liberal  and  sufficient  to 
cover  the  actual  injury  because  of  such  wantonness,  malicious- 
ness or  vindictiveness.  The  supreme  court  of  Kentucky  have 
held  that  juries  might  give  what  is  denominated  "smart  money" 
in  certain  aggn^avated  cases  of  tort.  The  court  say:  "If  tres- 
passers were  bound  to  pay  in  damages  no  more  than  the  exact 
value  of  the  property  forcibly  taken  and  converted  by  them, 
there  would  be  no  motive  created  by  the  operation  of  law  to  in- 
duce them  to  desist  and  abstain  from  invading  the  rights  of 
others.  To  furnish  such  a  motive  '  smart  money '  is  allowed. ' ' "' 
The  Illinois  court  has  held  to  this  doctrine  in  cases  where  the  acts 
are  not  indictable,  and  "where  the  trespass  is  wanton,  wilful  or 
malicious,  or  accompanied  with  such  acts  of  indignity  as  show 
reckless  regard  of  the  rights  of  others,"  basing  their  opinion 
upon  the  ground  of  punishment  for  the  wrong  and  to  deter 
others.^*'  ]\Ir.  Justice  Grier,  for  the  supreme  court  of  the  United 
States,  in  Day  v.  Woodworth,^'^  said:  "It  is  a  well  established 
principle  of  the  common  law,  that  in  actions  of  trespass  and  all 
actions  on  the  case  for  torts,  a  jury  may  inflict  what  are  called 
exemplary,  punitive,  or  vindictive  damages  upon  a  defendant, 
having  in  view  the  enormity  of  his  offense  rather  than  the  meas- 
ure of  compensation  to  the  plaintiff.  We  are  aware  that  the 
propriety  of  this  doctrine  has  been  questioned  by  some  writers; 
but  if  repeated  judicial  decisions  for  more  than  a  century  are  to 
be  received  as  the  best  exposition  of  what  the  law  is,  the  question 
will  not  admit  of  argument.  By  the  common  as  well  as  by  stat- 
ute law,  men  are  often  punished  for  aggravated  misconduct  or 
lawless  acts  by  means  of  a  civil  action,  and  the  damages  inflicted 
by  way  of  penalty  or  punishment  given  to  the  party  injured. 
In  many  civil  actions,  such  as  libel,  slander,  seduction,  etc.,  the 
wrong  done  to  the  plaintiff  is  incapable  of  being  measured  by  a 
money  standard;  and  the  damages  assessed  depend  on  the  cir- 
cumstances, showing  the  degree  of  moral  turpitude  or  atrocity 
of  the  defendant's  conduct,  and  may  properly  be  termed  exem- 
plary or  vindictive  rather  than  compensatory.  In  actions  of 
trespass,  where  the  injury  has  been  wanton  and  malicious,  or 
gross  and  outrageous,  courts  permit  juries  to  add  to  the  meas- 
ured compensation  of  the  plaintff  which  he  would  have  been  en- 

25  Tyson     v.     Ewing,     3     J.     J.  se  Cutler  v.  Smith,  57  111.  252. 

Marsh.  (Ky.)  186.  27 13   How.   363-371. 


782  CARRIERS    OF    PASSENGERS.  [§    712. 

titled  to  recover  had  the  injury  been  inflicted  without  design  or 
intention,  something  further  by  way  of  punishment  or  example, 
which  has  sometimes  been  called  'smart  money.'  This  has  been 
always  left  to  the  discretion  of  the  jury,  as  the  degree  of  pun- 
ishment to  be  thus  inflicted  must  depend  on  the  peculiar  cir- 
cumstances of  each  case." 

]\Ir.  Justice  Davis,  in  Milwaukee  v.  Arms,^^  discussing  this 
question,  used  this  language:  "It  is  undoubtedly  true  that  the 
allowance  of  anything  more  than  an  adequate  pecuniary  in- 
demnity for  a  wrong  suffered  is  a  great  departure  from  the 
principle  on  which  damages  in  civil  suits  are  awarded.  But  al- 
though, as  a  general  rule,  the  plaintiff  recovers  merely  such  in- 
demnity, yet  the  doctrine  is  too  well  settled  now  to  be  shaken, 
that  exemplary  damages  may  in  certain  cases  be  assessed.  As 
the  question  of  intention  is  always  material  in  an  action  of  tort, 
and  as  the  circumstances  which  characterize  the  transaction  are, 
therefore,  proper  to  be  weighed  by  the  jury  in  fixing  the  com- 
pensation of  the  injured  party,  it  may  well  be  considered 
whether  the  doctrine  of  exemplary  damages  cannot  be  reconciled 
with  the  idea  that  compensation  alone  is  the  true  measure  of 
redress.  But  jurists  have  chosen  to  place  this  doctrine  on  the 
ground,  not  that  the  sufferer  is  to  be  recompensed,  but  that  the 
offender  is  to  be  punished;  and,  although  some  text-writers  and 
courts  have  questioned  its  soundness,  it  has  been  accepted  as  the 
general  rule  in  England  and  in  most  of  the  states  of  this  coun- 
try. ...  In  ascertaining  its  extent,  the  jury  may  con- 
sider all  the  facts  which  relate  to  the  wrongful  act  of  the  de- 
fendant, and  its  consequences  to  the  plaintiff;  but  they  are  not 
at  liberty  to  go  farther  unless  it  was  done  wilfully,  or  was  the 
result  of  that  reckless  indifference  to  the  rights  of  others  which 
is  equivalent  to  an  intentional  violation  of  them.  In  that  case 
the  jury  are  authorized,  for  the  sake  of  public  example,  to  give 
such  additional  damages  as  the  circumstances  require.  The  tort 
is  aggravated  by  the  evil  motive,  and  on  this  rests  the  rule  of  ex- 
emplary damages." 

While  this  doctrine  seems  to  be  held  with  more  or  less  em- 
phasis in  very  many  states  of  the  Union,  some  of  the  courts  have, 
however,  as  we  have  said,  modified  the  ruling  by  holding  that  a 

28  91  U.  S.  (1  Otto),  489-493;  Philadelphia,  etc.  Ry.  Co.  v.  Quigley, 
21  How.  213. 


§    713.]  ACTIONS    AGAINST    COMMON    CARRIERS.  783 

very  liberal  allowance  of  compensatory  damages  may  be  allowed 
to  the  injured  plaintiff. 

§  713.  Exemplary  damages  confined  to  liberal  compensatory 
or  actual  damages. — Among  the  authorities  who  hold  to  the 
doctrine  that  a  liberal  allowance  of  compensatory  damages  to 
the  injured  plaintiff  should  be  allowed  in  cases  where  exemplary 
damages  would  appear  to  be  proper,  is  to  be  found  Professor 
Greenleaf ,  who  urges  this  to  be  the  correct  doctrine.  He  says :  ^-^ 
"It  is  frequently  said  that  in  actions  ex  delicto  evidence  is  ad- 
missible in  aggravation  or  in  mitigation  of  damages.  But  this, 
it  is  conceived,  means  nothing  more  than  that  evidence  is  admis- 
sible of  facts  and  circumstances  which  go  in  aggravation  or  in 
mitigation  of  the  injury  itself.  The  circumstances,  thus  proved, 
ought  to  be  those  which  belong  to  the  act  complained  of.  The 
plaintiff  is  not  justly  entitled  to  receive  compensation  beyond 
the  extent  of  his  injury,  nor  ought  the  defendant  to  pay  to  the 
plaintiff  more  than  the  plaintiff  is  entitled  to  receive."  One  of 
the  best  considered  cases  upon  the  subject  of  damages  is  that  of 
Fay  V.  Parker.^°  In  that  case  Mr.  Justice  Foster  has  considered 
every  leading  American  and  English  case  upon  the  subject  up 
to  the  time  of  the  decision.  His  argument  is  exhaustive  and  his 
reasoning  very  strong.  In  the  course  of  the  opinion  he  says: 
"I  venture  to  say  that  no  case  will  be  found  in  ancient,  nor  in- 
deed in  modem,  reports  in  which  a  judge  explicitly  told  a  jury 
that  they  might,  in  an  action  for  an  assault  and  battery,  give 
the  plaintiff  four  damages,  viz. :  1.  For  loss  of  property,  as  for 
injury  to  his  apparel,  losis  of  labor  and  time,  expenses  of  surgical 
assistance,  nursing,  etc.;  2.  For  bodily  pain;  3.  For  mental  suf- 
fering; and  4.  For  punishment  of  the  defendant's  crime.  But 
a  critical  examination  of  the  cases  will  show,  as  I  believe,  that 
this  fourth  item  is,  in  fact,  comprehended  in  the  third,  but  has 
grown  into  and  become  a  separate  and  additional  item  by  incon- 
siderate, if  not  intemperate  and  angry,  instructions  given  to 
juries  when  the  court  was  too  much  incensed  by  the  exhibition 
of  wanton  malice,  revenge,  insult  and  oppression  to  weigh  with 
coolness  and  deliberation  the  meaning  of  language  previously 
used  by  other  judges;  instructions  prompted  by  impulses  of 
righteous  indignation,  swift  to  administer  supposed  justice  to  a 

29  2  Greenl.,  sec.  266;  and  see  3053  n.  H.  342;  1  Sutherland, 
cases  cited.  Damages,  730. 


784  CARRIERS    OF    PASSENGERS.  [§    713. 

guilty  defendant,  but  expressed  with  too  little  caution  and  with- 
out pausing  to  reflect  that  the  court  was  thus  encouraging  the 
jury  to  give  the  plaintiff  more  than  he  was  entitled  to, — to  give 
him,  in  fact,  as  damages  the  avails  of  a  fine  imposed  for  the 
vindication  of  the  criminal  law,  and  for  the  sake  of  public  ex- 
ample. ' ' 

Chief  Justice  Gushing,  in  Bixby  v.  Dunlap,^'^  quotes  with  ap- 
proval the  case  of  Fay  v.  Parker.  The  supreme  court  of  Michi- 
gan, while  they  have  recognized  exemplary  damages  and  al- 
lowed such  damages  to  be  recoverable  in  the  redress  of  private 
injuries,  have  taken  occasion  to  say  in  'Watson  v.  V^latson  ^^  that 
the  increased  damages  resulting  from  circumstances  of  aggra- 
vation are  sometimes  spoken  of  as  exemplary,  as  in  a  certain 
sense  they  are,  but  in  a  less  misleading  and  more  accurate  sense 
they  are  compensatory.  And  this  judgment  has  been  followed 
in  several  cases  decided  in  that  court.  As  in  Scripps  v.  Riley  ^^ 
it  was  held  that  actual  damages  for  injured  feelings  may  be  in- 
creased or  aggravated  by  the  defendant's  vindictive  feelings,  or 
the  degree  of  malice,  recklessness,  gross  negligence,  or  careless- 
ness on  his  part.  But  in  Long  v.  Printing  Co.^*  the  court  say: 
"Damages  for  injury  to  feelings,  shame,  mortification,  mental 
anxiety,  insulted  honor  and  indignation  have  always,  in  this 
state  at  least,  been  regarded  as  actual  damages  and  not  as  ex- 
emplary, punitive,  or  vindictive  damages. "  In  an  action  against 
carriers  for  the  conversion  of  a  quantity  of  flowers  intrusted  to 
them  for  delivery  to  plaintiff's  customers  in  New  York,  which 
they  appropriated  to  their  own  use,  sending  them  to  their  own 
customers  and  to  supply  their  own  contracts,  knowing  that  they 
had  no  right  to  do  so,  the  court  held  that  it  was  not  error  to 
charge  the  jury  that  ' '  if  they  can  say  from  the  evidence  that  the 
defendants  dishonestly  overrode  the  rights  of  the  plaintiff  for 
their  own  purposes,  knowing  that  the  goods  in  question  were  his 
and  not  theirs,  and  disregarding  his  rights  took  the  goods  for 
their  own  use,  punitive  damages  may  be  awarded. ' '  ^^ 

31  56  N.  H.  456.  capable  of  accurate  pecuniary  es- 

32  53  Mich.  168.  timation.     Ten  Hopen  v.  Walker, 

33  38  Mich.  10;  Welch  v.  Ware,      96  Mich.  236. 

32  Mich.  72;   Dalman  v.  Konning,  34 107      Mich.      207;      Ford      v. 

54  Mich.  320.    Held,  in  Durfee  v.  Cheever,   105   Mich.   679. 

Newkirk,    83    Mich.    522,    that   ex-  35  Downing    v.    Outerbridge,    25 

emplary    damages    cannot    be    al-  C.  C.  A.  244,  79  Fed.  931. 
lowed    where    the    damages    are 


§    714.]  ACTIONS    AGAINST    COMMON    CARRIERS.  785 

It  appears,  however,  that  the  disagreement  of  authorities  is 
more  as  to  the  name  of  the  damages  that  all  agree  may  be  al- 
lowed. None  of  the  courts  or  authors  will  claim  but  that  under 
certain  circumstances  proved  in  a  case,  exemplary  damages  may 
be  properly  recovered,  though  some  of  them  would  insist  that 
the  exemplary  damages  are  allowed  and  recoverable  only  as  ac- 
tual damages,  or,  as  they  are  sometimes  called,  compensatory 
damages. 

Mr.  Justice  Foster,  in  Fa/y  v.  Parker,^^  already  cited,  in  the 
course  of  his  opinion  says :  *  *  Call  them  what  you  may,  compensa- 
tory in  fact  or  punitory  in  their  operation,  if  the  same  damages 
are  awarded  but  once  the  distinction  is  merely  verbal,  and  we 
may  well  doubt  whether  the  learned  chief  justice,  in  recommend 
ing  the  award  of  damages  with  a  liberal  hand,  intended  anything 
more  or  other  than  we  mean  when  we  tell  juries  to  give  the 
plaintiff  what  the  defendant  ought  to  pay  and  the  plaintiff 
ought  to  receive  in  view  of  the  wrong  and  suffering  inflicted 
by  the  malice,  insult  and  indignity  exhibited  by  the  circum- 
stances of  the  case." 

The  supreme  court  of  Michigan,  in  Ross  v.  Leggett,^''  say:  "It 
is  of  little  consequence  by  what  name  the  damages  given  are 
called,  provided  the  case  is  one  involving  that  class  of  injuries 
for  which  the  plaintiff  is  entitled  to  recover ;  they  may  be  called 
"exemplary,"  "punitory,"  "vindictive,"  "compensatory,"  or 
added  damages.  The  important  question  always  is  in  every 
case,  Was  the  character  of  the  wrong  suffered  or  injury  sus- 
tained such  as  may  be  lawfully  atoned  for  or  compensated  in 
money  ? ' ' 

§  714.  Liability   of   principal   or   master   for   acts   of 

agents  or  servants. — It  is  well  understood  that  carrier  corpo- 
rations, like  other  corporations,  act  entirely  through  their  serv- 
ants or  agents.  The  liability  of  such  a  carrier,  as  well  as  all  who 
transact  business  by  agents  or  servants,  for  damages  must  de- 
pend upon  the  authority  of  the  agent  or  servant  who  caused  the 
injury.  It  should  appear  that  they  were  acting  within  the  scope 
of  their  authority,  express  or  implied,  at  the  time  they  were 
guilty  of  the  breach  of  duty.  In  determining  whether  this  re- 
lation existed  it  is  necessary  to  show  that  the  agent  or  servant 
was  engaged  in  carrying  out  the  object  of  his  employment;  that 

36  53  N.  H.  342.  37  61  Mich.  445-452. 

50 


786  CAERIERS    OF   PASSENGERS,  [§    715. 

lie  was  working  or  acting,  or  operating  within  the  scope  of  his 
authority,  not  that  he  was  authorized  to  commit  the  specific  tort, 
but  that  the  act  complained  of  was  incident  to  the  performance 
of  the  duty  that  his  master  or  principal  had  employed  him  to 
perform;  that  while  in  the  service  of  the  master  or  principal, 
and  while  acting  for  him,  and  in  the  course  of  his  employment, 
the  tort  complained  of  was  committed.  The  true  rule  would 
seem  to  be  that  the  master  is  only  responsible  so  long  as  the 
servant  can  be  said  to  be  doing  the  act  he  was  employed  to  do, 
and  while  in  the  course  of  his  employment  as  servant  he  was 
guilty  of  the  negligence  complained  of.^^  In  Downey  v.  Bail- 
way  Co.^^  the  court  say:  "Where  the  wrong  has  been  done  under 
circumstances  indicating  wantonness,  violence  and  oppression 
upon  the  part  of  the  wrong-doer,  exemplary  damages  are  recov- 
erable. But  such  damages  are  not  recoverable  against  a  railroad 
company  unless  the  injury  is  the  result  of  the  authorized  or  rati- 
fied misconduct  of  its  servants.  There  are  some  cases  which  hold 
that  when  a  person  is  injured  by  gross  negligence  on  the  part  of 
the  railway  company  he  may  recover  exemplary  damages;  but 
the  better  and  more  reasonable  doctrine  seems  to  be  that  the 
railway  company  is  not  to  be  held  liable  in  exemplary  damages 
for  injuries  caused  by  the  negligence  of  its  servants,  unless  it 
be  shown  that  the  servant's  act  was  wilful,  and  was  either  au- 
thorized or  ratified  by  the  company;  but  such  authorization  or 
ratification  can  be  evidenced  either  by  an  express  order  to  do 
the  act,  or  an  express  approval  of  its  commission,  or  by  an 
antecedent  retention  of  a  servant  of  known  incompetency,  or  by 
a  subsequent  retention  or  promotion  of  the  negligent  servant." 
§  715.  Damages  for  refusal  to  receive  and  transport. — The 
action  for  refusal  to  receive  the  goods  and  transport  them  can- 
not depend  upon  a  contract,  for  none  exists ;  it  is  based  entirely 
upon  the  duty  of  the  carrier  to  receive  and  carry  the  property 
offered.  As  we  have  seen  there  may  be  a  good  and  legal  reason 
for  such  refusal  on  the  part  of  the  carrier,  as,  for  example,  that 
the  goods  were  not  fit  for  shipment.    But  if  there  is  no  valid 

38Quarman  v.  Burnett,  6  M.  &  Railway  Co.,  33  W.  Va.  433;  Tal- 

W.  599;   Joslin  v.  Grand  Rapids,  bott   v.   Railway   Co,    42   W.   Va. 

etc.  R.  Co.,  50  Mich.  516;   Sleath  560;    Patterson  on  Railway  Acci- 

V.  Wilson,  9  C.  &  P.  607;   Mech.  dent   Law,    sees.    392,    471;    Cleg- 

on  Agency,  sec.  737.  horn  v.  N.  Y.  etc.  R.  Co.,  56  N.  Y. 

39  28  W.  Va.  732,  743;  Ricketts  v.  44. 


§    716.]  ACTIONS   AGAINST   COMMON   CARRIERS.  787 

legal  reason  for  the  refusal,  then  the  measure  of  damages,  in 
case  the  goods  are  articles  of  merchandise  and  shipped  for  the 
market,  has  been  held  to  be  such  an  amount  as  would  place  the 
plaintiff  in  the  position  he  would  occupy  had  the  goods  been  re- 
ceived, carried  and  delivered  at  their  destination ;  that  is  to  say, 
the  difference  in  the  value  of  the  goods  at  the  time  they  would 
have  to  be  delivered,  if  transported,  at  the  place  of  destination, 
and  their  value  at  the  place  of  proposed  shipment,  with  interest 
from  the  time  they  should  have  arrived,  less  the  cost  of  trans- 
portation.***  It  must  be  remembered,  however,  that  it  is  the  duty 
of  the  injured  party  not  to  magnify  or  increase  the  damages, 
but  rather  to  make  them  as  small  as  he  reasonably  can  under  the 
circumstances.*^  And  so  in  this  case  it  would  be  the  shipper's 
duty  to  ship  the  goods  if  he  could  do  so  by  some  other  route ;  and 
in  such  case  the  measure  of  damages  would  be  the  amount  of  ex- 
pense he  was  compelled  to  pay  in  carrying  the  goods  and  deliver- 
ing them  to  the  other  carrier,  the  excess  freight,  if  any,  he  was 
obliged  to  pay,  and,  if  delayed  because  of  the  refusal,  whatever 
loss  was  incurred  on  that  account.  But  if  the  price  demanded 
by  the  other  carrier  was  reasonable,  but  would  have  rendered 
the  shipment  unprofitable,  the  shipper  would  not  be  justified  in 
procuring  such  shipment,  for  in  such  case  hf  could  procure  like 
goods  in  the  terminal  market  for  a  less  amount,  and  therefore 
there  would  be  no  damage. 

§  716.  For  loss  or  injury  in  transit. — If  the  goods  are  lost 
or  injured  in  transit,  we  have  but  to  apply  the  principle  dis- 
cussed in  the  last  section.  The  damages  would  be  as  there  stated : 
such  an  amount  as  would  place  the  principal  in  the  position  he 
would  occupy  had  the  goods  been  delivered  at  the  place  of  their 
destination ;  and  where  the  carrier  received  goods  for  transporta- 
tion and  failed  to  deliver  them,  it  was  held  that  the  owner  was 
entitled  to  the  market  value  of  the  goods  at  the  time  and  place 

40  Ward  v.  Elkins,  34  Mich.  439,  goods  are  perishable,  the  shipper 
and  see  cases  cited  in  briefs  of  must  not  remain  inactive  but 
counsel;  Harvey  v.  Railway  Co.,  must  adopt  whatever  means  are 
124  Mass.  421;  Galena,  etc.  R.  Co.  at  hand  to  forward  the  goods  at 
v.  Rae,  18  111.  488;  Cobb  v.  Rail-  once;  nor  can  he  send  the  goods 
way  Co.,  38  Iowa,  601.  in    different    parcels    and    claim 

41  Houston,  etc.,  Co.  v.  Smith,  damages  for  the  additional 
63  Tex.  322,  22  Am.  &  Eng.  Cases,  freight  charges.  Ward,  etc.  Co. 
421;  Pittsburg,  etc.  Co.  v.  Morton  v.  Elkins,  supra;  Grund  v.  Pen- 
et   al.,    61    Ind.    539.      When    the  dergast,  58  Barb.  216. 


788  CARRIERS    OF    PASSENGERS.  [§    718. 

they  should  have  been  delivered,*^  with  interest  from  that  time. 
In  Cutting  v.  Railway  Co.*^  the  supreme  court  of  Massachusetts 
say:  "As  a  general  rule  the  appropriate  compensation  for  the 
breach  of  a  contract  to  deliver  goods  is  their  market  value  in 
money  at  the  time  and  place  at  which  they  should  have  been  de- 
livered, with  interest  thereon,  and  it  is  admitted  that  such  is  the 
rule  in  an  action  against  a  carrier  if  the  goods  are  never  deliv- 
ered." 

The  measure  of  damages,  however,  for  goods  delivered  in  a 
damaged  condition  is  held  to  be  the  difference  between  the  value 
of  the  goods  in  their  damaged  state  and  their  value  at  the  place 
of  destination  had  they  been  delivered  in  good  order.**  But 
where  a  machine  was  so  damaged  by  the  carrier's  negligence  that 
the  cost  of  repairing  it  would  equal  the  cost  of  a  new  one,  it  was 
held  that  the  plaintiff  could  recover  the  value  of  the  machine, 
the  freight  paid  and  interest  from  the  time  when  it  should  have 
been  delivered.*^ 

§  717.  Shipper  bound  by  value  placed  upon  his  goods  when 
shipped. — But  where  a  shipper  places  a  value  upon  his  goods 
and  knowingly  enters  into  a  contract  for  their  shipment  at  a 
price  basied  upon  such  valuation,  he  is  bound  by  the  contract. 
Such  a  contract  does  not  excuse  the  carrier  from  the  exercise  of 
reasonable  care,  but  the  shipper  cannot  have  his  property  trans- 
ported at  a  low  rate  because  of  such  valuation,  and  in  case  of 
loss  compel  the  carrier  to  pay  more  than  the  value  stated  in  the 
contract.*" 

§  718.  Where  the  goods  are  not  merchandise  and  not  mar- 
ketable.— Goods  that  have  no  market  value,  but  are  especially 
useful  and  valuable  to  the  shipper,  are  often  shipped  and  lost 
or  damaged  in  transit.  The  damage  in  such  case  cannot  be  gov- 
erned by  the  market  value  of  the  goods,  because  they  have  no 
such  value,  but  the  recoverable  damages  must  depend  upon  the 
value  of  the  goods  to  the  owner;  but  in  fixing  the  value  the 

42  Spring    V.    Haskell,    4    Allen,  *^  Thomas,   etc.   Co.  v.   Railway 

112.  Co.,  62  Wis.  642. 

«13  Allen  (Mass.),  381.  46  Chicago,  etc.  R.  Co.  v.  Miller, 
44  Silverman  v.  Railway  Co.,  51  79  111.  App.  472;  Hart  v.  Railway 
La.  Ann.  1785,  26  So.  447;  Heil  v.  Co.  112  U.  S.  331,  18  Am.  &  Eng. 
Railway  Co.,  16  Mo.  App.  363;  Ry.  Cases,  604;  Railway  Co.  v.  Mil- 
Railway  Co.  V.  Berchfield,  12  Tex.  ler,  16  Neb.  661,  18  Am.  &  Eng.  R. 
Civ.  App.  145.  Cases,  545. 


§    719.]  ACTIONS   AGAINST    COMMON    CARRIERS.  789 

owner  will  not  be  permitted  to  base  his  estimate  upon  a  partial 
or  capricious  price,  but  an  amount  must  be  fixed  that  under  all 
the  circumstances  would  be  considered  reasonable  and  just.*'' 

Where  goods  were  damaged  in  transit  which  ha<l  no  market 
value,  it  was  held  that  the  measure  of  damages  would  be  the 
cost  of  reproducing  or  replacing  them,  and  if  they  could  not  be 
reproduced  or  replaced,  then  the  value  of  the  property  to  the 
owner.*^  Where  the  property  shipped  was  a  family  portrait,  it 
was  held  by  the  Massachusetts  court  that  the  damages  for  its 
loss  would  be  the  value  to  the  owner  and  not  the  market  value. 
The  court  say:  "The  general  rule  of  damages  in  trover,  and  in 
contract  for  not  delivering  goods,  undoubtedly  is  the  fair  market 
value  of  the  goods.  But  this  rule  does  not  apply  when  the  arti- 
cle sued  for  is  not  marketable  property.  To  instruct  the  jury 
that  the  measure  of  damages  for  the  conversion  or  loss  of  a  fam- 
ily portrait  is  its  market  value  would  be  merely  delusive.  It 
cannot  with  any  propriety  be  said  to  have  any  market  value. 
The  just  rule  of  damages  is  the  actual  value  to  him  who  owns  it, 
taking  into  account  its  cost,  the  practicability  and  expense  of 
replacing  it,  and  such  other  considerations  as  in  the  particular 
case  affect  its  value  to  the  owner. ' '  *®  Where  the  property 
shipped  consisted  of  stereotyped  plates  to  be  used  by  the  plaint- 
iffs in  their  special  business  and  had  no  market  value,  it  was  said 
by  the  Massachusetts  court,  "such  things  cannot,  with  any  pro- 
priety, be  said  to  have  a  market  value,  and  the  actual  value  to 
him  who  owns  and  uses  them  is  the  just  rule  of  damages  in  an 
action  against  him  who  converts  them  to  his  own  use. ' '  ^'^ 

§  719.  Goods  shipped  to  be  delivered  on  contract  of 

sale. — In  considering  this  question,  the  general  rule  governing 
damages  must  be  kept  in  mind.  It  will  be  remembered  that  as 
a  general  rule  the  damages  in  all  cases  must  be  proximate  and 
the  natural  consequences  of  the  breach  of  duty  or  contract  al- 
leged,^^  the  maxim  being  ''causa  proxima  non  remota  specta- 

47  Denver,  etc.  R.  Co.  v.  Frame,  so  Stickney  et  al.  v.  Allen,  10 
6   Colo.   382,   18   Am.    &   Eng.   R.      Gray  (Mass.),  352. 

Cases,  637.  si  Hadley  v.  Baxendale,  9  Exch. 

48  Houston,  etc.  R.  Co.  v.  Ney,  341;  Gait  v.  Archer,  7  Grat.  (Va.) 
58  S.  W.  43.  307;     Cobb    v.    Railway    Co,    38 

49  Green    v.    Railway    Co.»    128      Iowa;    601;    Medbury   v.   Railway 
Mass.  221,  35  Am.  Rep.  370.  Co.,   26   Barb.    (N.  Y.)    569;    Rail- 
way Co.  V.  Cobb,  64  111.  143. 


790  CARRIERS    OF    PASSENGERS.  [§    720. 

lur;"  but  in  the  class  of  cases  under  consideration  the  courts 
have  generally  held  that  where  goods  have  been  transported  by 
the  carrier  to  fill  a  contract  of  sale  between  the  owner  and  the 
consignee,  the  carrier  having  notice  of  that  fact  at  the  time  of 
receiving  the  goods  and  entering  upon  the  shipment  of  them,  the 
goods  being  lost  under  circumstances  rendering  the  carrier  lia- 
ble, and  by  reason  of  the  loss  and  consequent  delay  the  owner 
is  rendered  imable  to  fulfill  his  contract,  the  measure  of  dam- 
ages in  an  action  against  the  carrier  is  governed  by  the  loss  to 
the  owner  by  reason  of  the  failure  to  deliver  the  goods  upon  his 
contract  of  sale,  or  the  contract  price  of  the  goods. 

§  720.  Failure  to  deliver  at  time  specified  or  within 

reasonable  time — Reasonable  delay. — As  we  have  seen,  it  is  the 
duty  of  the  carrier  to  transport  and  deliver  the  goods  shipped  to 
the  consignee  within  the  time  stipulated,  and  if  there  is  no  stip- 
ulation as  to  the  time  of  delivery,  then  within  a  reasonable 
time;  if  the  goods  shipped  are  intended  for  the  market,  for  a 
breach  of  the  contract  of  shipment,  or  a  breach  of  duty  upon  the 
part  of  the  carrier,  the  rule  of  damages  would  be  the  difference 
between  the  value  of  the  goods  at  the  time  and  place  they  should 
have  been  delivered  and  their  value  when  they  are  in  fact  deliv- 
ered, computed  at  the  place  of  destination,  with  interest,  less 
freight  unpaid.^-  In  Cutting  v.  Railway  Co.^^  Mr.  Justice  Gray 
in  rendering  the  opinion,  said :  ' '  The  true  rule  and  measure  of 
damages,  in  our  opinion,  whenever  by  reason  of  inexcusable  de- 
lay of  the  carrier  the  goods  are  not  delivered  until  after  they 
have  diminished  in  market  value,  is  the  amount  of  the  diminu- 
tion. This  allows  to  the  person  injured  the  value,  as  exactly  as 
it  can  be  estimated  in  money,  of  that  of  which  he  has  been  finally 
deprived  by  the  wrongful  act  of  the  defendant ;  and  is  the  most 
simple  and  just  rule  as  well  as  the  easiest  to  be  applied;  for  it 
depends  on  the  general  market  value  of  the  goods,  and  involves 
no  contingent  or  speculative  profits,  and  no  consideration  of  any 

52  Railway  Co.  v.  Mudford,  48  85  Ga.  497;  Railway  Co.  v.  Lock- 
Ark.  502;  Peet  v.  Railway  Co.,  22  hart,  71  111.  627. 
Wis.  594,  91  Am.  Dec.  446;  •"  95  Mass.  (13  Allen),  381;  Fox 
Devereux  v.  Buckley,  34  Ohio  St.  v.  Harding,  7  Cush.  516;  Waite  v. 
16,  32  Am.  Rep.  342;  Sisson  v.  Gilbert,  10  Cush.  177;  Le  Peintur 
Cleveland,  etc.  Co.,  14  Mich.  489;  v.  Southeastern  Ry.  Co.,  2  Law 
In  re  Peterson  v.  Case  (C.  C),  21  Times  (N.  S.),  170;  Gee  v.  Lan- 
Fed.  885;  Railway  Co.  v.  Johnson,  cashire  &  Y.  Ry.  Co.,  6  H.  &  N. 

211,  9  C.  B.  (N.  S.)  646. 


§    721.]  ACTIONS    AGAINST    COMMON    CARRIERS.  791 

other  contracts  made  or  omitted  to  be  made  by  the  plaintiff  in 
view  of  his  contract  with  the  defendant.  To  refer  to  such  other 
contracts,  or  the  profits  which  might  have  resulted  from  them, 
not  within  the  knowledge  or  contemplation  of  the  defendant, 
would  be  to  hold  him  liable  for  the  consequences,  or  allow  him 
the  benefit,  not  of  his  own  contract  with  the  plaintiff,  but  of  deal- 
ing between  the  latter  and  third  persons  with  which  the  defend- 
ant had  nothing  to  do.  .  .  .  The  distinction  between  loss  of 
profits  and  diminution  in  the  market  value  of  the  goods  was  well 
stated  in  the  first  of  these  cases  by  Mr-  Justice  Byles,  who  said: 
'Profits  include  the  increased  value  arising  from  the  purpose  to 
which  the  plaintiff  intended  to  apply  the  goods ;  whereas  diminu- 
tion in  exchangeable  value  is  only  something  subtracted  from 
the  inherent  value  of  the  articles  themselves.'  'It  is  admftted 
that  deterioration  in  quality  is  to  be  taken  into  account  in  esti- 
mating the  damage  the  plaintiff  has  sustained;  it  is  admitted 
also  that  loss  or  diminution  in  the  quantity  is  to  be  taken  into 
account ;  and  I  do  not  see  why  a  loss  in  the  exchangeable  value 
of  the  goods  should  not  also  be  taken  into  account. '  ' ' 

If  the  goods  are  not  intended  for  the  market,  as,  for  example, 
household  goods  or  articles  that  are  shipped  for  the  special  use 
of  the  consignee,  the  damages  would  be  measured  by  the  value  of 
the  use  of  the  goods  during  the  delay,  with  interest  from  the 
time  they  should  have  been  delivered.^* 

§  721.  Failure  to  deliver  and  misdelivery. — If  the  carrier 
after  a  reasonable  time  fails  to  deliver  the  goods  to  the  con- 
signee, he  will  be  liable  for  their  value  at  the  place  of  destina- 
tion, with  the  freight  paid  and  interest  from  the  time  the  goods 
should  have  been  delivered,  if  they  were  intended  for  the  mar- 
ket, or  were  marketable  goods ;  and  the  same  rule  will  generally 
obtain  in  cases  of  misdelivery.  Cases  are  often  peculiar  in  their 
facts,  and  it  would  be  impossible  to  lay  down  a  rule  of  damages 
that  would  govern  every  case.     As  for  example,  where  goods 

54  Brown  v.  Adams,  3  Tex.  App.  Ragsdale,  46  Miss.  458,  where  the 

Civ.    Cases,    sec.    390;    Marsh    v.  rule  of  damages  in  case  of  delay 

Railway  Co.,   6  Am.   &   Eng.  Ry.  in   transporting   articles   intended 

Cases,  359;  Railway  Co.  v.  Frame,  to   be   used   in   business,   thereby 

6    Colo.    382;    International,    etc.  causing  loss  of  profits  and  use,  i3 

Co.    V.    Nicholson,    61    Tex.    550.  discussed. 
And    see    Vicksburg,    etc.    Co.    v. 


792  CARRIERS   OF   PASSENGERS.  [§   723. 

were  misdelivered  and  the  consignee  received  the  goods  immedi- 
ately from  the  party  to  whom  they  were  wrongfully  delivered, 
it  was  held  that,  while  the  plaintiff  could  recover,  his  recovery 
could  only  be  for  nominal  damages.^^ 

II. 

Actions  Against  Carriers  op  Passengers. 

§  722.  Survival   of  actions   for  personal  injuries. — At  the 

common  law  actions  for  personal  injuries  died  with  the  person 
injured,  the  maxim  being  "actio  personalis  moritur  cum  per- 
sona." This  rule  of  law  has  been  modified  by  statutes  in  Eng- 
land and  in  the  several  states  of  the  United  States,  so  that  at 
the  present  time  the  personal  representatives  of  the  deceased 
may  bring  an  action  for  the  injury  and  death  in  all  cases  where, 
if  death  had  not  resulted,  the  injured  person  could  have  sus- 
tained an  action  for  the  injury;  the  action  being  for  the  benefit 
of  the  near  relatives  of  the  deceased,  as  the  wife,  if  living,  or  the 
children  or  parents,  or  those  dependent  upon  the  deceased ;  and 
these  statutes  apply  to  all  cases  resulting  from  injury  whether 
by  common  carriers  or  other  persons.^® 

§  723.  When  the  injury  does  not  result  in  death. — Where 
death  does  not  result  from  the  injury,  the  action  can  be  sus- 
tained by  any  person  damaged  by  reason  of  the  injury  resulting 
from  the  negligence  of  the  defendant ;  that  is  to  say,  the  injured 
person  himself,  if  capable  of  bringing  an  action,  may  recover 
against  the  carrier ;  or  a  parent  for  an  injury  to  his  minor  child, 
or  a  husband  for  an  injury  to  his  wife,  which  deprives  him  of 
her  society  and  services. 

55Rosenfield   v.   Express   Co.,   1  actions     for     damages     for     the 

Wood  (U.  S.)  131.  death    of    the    person    injured.    3 

56  By  4  Bdw.  III.,  ch.  7,  the  rule  Blk.  Com.  302;  Russell  v.  Sun- 
was  modified  so  as  to  give  an  bury,  37  Ohio  St.  374;  Mitchel  v. 
action  in  favor  of  a  personal  rep-  Hotchkiss,  48  Conn.  16;  James  v. 
resentative  for  injuries  to  per-  Emmet  Co.,  55  Mich.  335;  Racho 
sonalty;  by  3  and  4  Will.  IV.,  ch.  v.  Detroit,  90  Mich.  92;  Davis  v. 
42,  against  personal  representa-  New  York,  etc.  R.  Co.,  143  Mass. 
tives  for  injuries  to  personalty  or  305;  Carey  v.  Railway  Co.,  1  Cush. 
realty,  and  by  9  and  10  Vict,  ch.  475;  Lyon  v.  Woodward,  49  Me. 
23,  an  act  known  as  Lord  Camp-  09. 
bell's    Act    was    passed,    allowing 


§'   726.]  ACTIONS   AGAINST    COMMON    CARUIEBS.  793 

THE  PLEADINGS. 

§  724.  Based  upon  what. — Actions  against  common  carriers 
of  passengers,  like  actions  against  carriers  of  goods,  are  based 
upon  the  contract  for  carriage,  express  or  implied,  or  upon  a 
breach  of  that  duty  which  the  carrier  owes  to  the  public  and  to 
the  individual  passenger  to  furnish  safe  transportation  within  a 
reasonable  time  and  in  a  reasonably  comfortable  manner. 

The  duty  of  the  carrier  to  the  passenger  and  the  duty  of  the 
passenger  to  the  carrier  have  already  been  discussed  in  a  former 
chapter.  A  failure  to  perform  that  duty,  if  there  is  no  legal 
limitation,  fixes  the  liability,  and  the  declaration  or  petition  in 
an  action  against  the  carrier  should  in  a  concise  and  logical  man- 
ner allege  in  apt  and  sufficient  language  the  existence  of  the  re- 
lation of  carrier  and  passenger,  and  by  averment  apprise  the 
court  and  the  parties  of  the  particular  duty  that  the  carrier  has 
failed  to  perform;  or  if  upon  a  contract,  the  particular  breach 
of  the  contract  which  the  injury  complained  of  has  resulted  in ; 
that  the  plaintiff  was  in  the  exercise  of  ordinary  care;  that  the 
failure  on  the  part  of  the  defendant  to  perform  the  contract  or 
duty  resulted  in  the  injury  complained  of  and  alleging  the  re- 
sultant damages.  The  usual  and  existing  rules  applicable  to 
pleading  are  followed  in  setting  out  in  proper  language  in  the 
declaration  or  petition  the  averment  above  mentioned.  The 
plaintiff  must  by  his  declaration  make  out  a  case  against  the  de- 
fendant, otherwise  it  would  be  subject  to  demurrer. 

§  725.  The  answer  or  plea  of  the  defendant. — The  defend- 
ant may  in  his  plea  or  answer  set  out  any  of  the  defenses  which 
have  already  been  mentioned  by  which  he  is  able  to  meet  the  case 
made  by  the  plaintiff ;  that  is  to  say,  a  general  denial  of  the  alle- 
gations of  the  petition  or  declaration ;  or  that  the  plaintiff 's  in- 
jury was  not  the  proximate  result  of  the  accident  complained  of, 
or  that  the  plaintiff  was  guilty  of  contributory  negligence. 

THE  EVIDENCE. 

§  726.  What  must  be  proven. — It  is  incumbent  upon  the 
plaintiff  to  make  out  his  case  as  alleged  by  a  preponderance  of 
evidence.  The  allegations  made  in  the  declaration  or  petition 
must  be  proven  so  clearly  that  it  may  be  said  that  the  case  is 
proved.  While  this  is  true,  it  does  not  follow  that  the  plaintiff 
must  provp  by  oral  or  written  proof  every  fact  in  the  case  nee- 


794  CARRIERS    OF   PASSENGERS-  [§    727. 

essary  to  be  proved  in  order  to  sustain  the  allegations  in  his  pe- 
tition or  declaration,  for  there  are  certain  facts  which  are  pre- 
sumed; as,  for  example,  it  appearing  that  the  defendant  is  a 
common  carrier  of  passengers ;  that  the  plaintiff  was  a  passenger 
for  hire  and  being  transported  by  him  upon  his  vehicle,  the  law 
lays  upon  the  carrier  in  such  case  certain  duties  and  raises  cer- 
tain implied  obligations,  and  it  is  not  necessary  to  prove  what 
these  duties  or  obligations  are;  but  when  the  circumstances  and 
facts  are  shown  which  prove  the  relation  of  passenger  and  car- 
rier and  circumstances  of  the  accident,  and  that  the  injury  re- 
sulted from  the  accident  which  was  the  result  of  the  negligence 
of  the  carrier,  and  the  amount  of  damages  which  were  directly 
caused  by  the  accident,  the  case  is  made  out. 

§  727.  Presumption  of  negli'gence. — Negligence,  however,  is 
not  always  presumed  from  the  mere  fact  that  an  accident  oc- 
curred which  resulted  in  an  injury  to  the  passenger,  for  although 
a  very  high  degree  of  diligence  is  required  of  the  carrier,  he  is, 
as  we  have  seen,  often  excused  from  liability;  as  where  the  acci- 
dent was  directly  and  entirely  attributable  to  an  act  of  God  or 
the  public  enemy,  or  was  the  result  of  the  negligence  of  the 
plaintiff;  in  such  cases  negligence  would  not  be  presumed,  but 
could  only  be  made  out  by  proof;  and  as  to  whether  the  negli- 
gence which  caused  the  accident  and  which  resulted  in  damages 
was  attributable  to  the  carrier  would  be  a  question  for  the  jury ; 
but  if  the  accident  resulted  from  a  collision  of  trains,  from  a  de- 
fective track,  from  broken  and  unsuitable  vehicles  or  machinery, 
in  such  like  cases  negligence  would  be  presumed,  for  in  all  such 
cases  the  defendant  has  the  exclusive  control  and  management 
and  must  therefore  avoid  the  accident;  as,  for  example,  he  is 
bound  to  so  regulate  the  running  of  his  trains  that  collisions  will 
not  occur.  The  track  over  which  trains  are  run,  the  vehicles 
which  are  used  for  conveying  the  passengers,  the  machinery 
which  is  employed  by  the  carrier  for  the  hauling  of  his  trains,  all 
are  under  the  immediate  and  absolute  control  of  the  carrier,  and 
so  if  he  fails  to  perform  his  duty  in  respect  to  these  agencies, 
negligence  will  be  presumed  and  he  will  be  liable  for  damages 
resulting  therefrom.  And  where  a  stage-coach  was  overturned 
by  the  coming  off  of  a  wheel  upon  a  smooth  and  level  road,  the 
evidence  was  held  to  be  competent  to  show  that  the  coach  could 
not  have  been  properly  prepared  for  the  road.^^     And  where  a 

•"-T  Ware  v.  Gay,  11  Pick.  (Mass.)  106. 


§    727.]  ACTIONS    AGAINST    COMMON    CARRIERS.  795 

railroad  train  ran  from  the  track  and  was  overturned,  it  was 
fairly  presumable,  as  the  machinery  and  railway  track  were  ex- 
clusively in  the  management  of  the  railway  company,  that  the 
accident  arose  from  its  want  of  care ;  no  explanation  of  the  cause 
being  offered.^*  In  Kendall  v.  Boston,^^  in  summing  up  the  cases 
cited,  the  court  say :  ' '  In  all  these  eases  it  is  to  be  observed  that 
the  defendant  has  been  proved  to  have  had  the  exclusive  control 
and  management  of  those  objects  or  agencies  from  some  defect 
in  which  the  accident  must  have  taken  place." 

In  Edgerton  v.  Railway  Go.^^  it  is  said:  ** Whenever  a  car  or 
train  leaves  the  track  it  proves  that  either  the  track  or  ma- 
chinery, or  some  other  portion  thereof,  is  not  in  a  proper  con- 
dition, or  that  the  machinery  is  not  properly  operated,  and  pre- 
sumptively proves  that  the  defendant,  whose  duty  it  is  to  keep 
the  track  and  machinery  in  the  proper  condition,  and  to  operate 
it  with  the  necessary  prudence  and  care,  has  in  some  respect  vio- 
lated this  duty.  It  is  true  that  a  bad  state  of  the  track  or  ma- 
chinery may  have  resulted  from  the  wrongful  act  of  persons  for 
whose  conduct  the  defendant  is  not  responsible  and  the  injury  to 
the  passenger  may  have  resulted  therefrom,  and  in  such  case  the 
company  is  not  responsible;  but  such  cases  are  extraordinary, 
and  those  guilty  of  perpetrating  such  acts  are  highly  criminal; 
and  therefore  there  is  no  presumption  of  the  perpetration  of  such 
acts  by  others,  and  the  company,  if  excusable  upon  this  ground, 
must  prove  the  facts  establishing  such  excuse."  And  where  a 
passenger  in  defendant's  stage-coach  was  drowned  by  the  coach 
being  precipitated  into  the  water  because  of  the  uncoupling  of 
the  fore-wheels  while  it  was  being  driven  into  a  ferry-boat,  it 
was  held  that  the  negligence  of  the  defendant  would  be  pre- 
sumed.®^ 

58  Carpue  v.  London,  etc.  R.  Co.,  more,  etc.  Co.  v.  Worthington,  21 

5  Q.  B.  747;  Feital  v.  Railway  Co.,  Md.    275,    83    Am.    Dec.   578;    Wil- 

109  Mass.  390,  405.  son  v.  Railway  Co.,  26  Minn.  278; 

eollS  Mass.  234,  236.  Meier  v.  Railway  Co.,  64   Pa.   St. 

60  39  N.  Y.  227,  229.  230;    Railway  Co.  v.  Williams,  74 

61  McLean  v.  Burbank,  11  Minn.  Ind.  462;  Cleveland,  etc.  R.  Co.  v. 
277;  Stokes  v.  Saltonstall,  38  U.  Newell,  104  Ind.  364;  Mitchell  v. 
S.  (13  Pet.)  181,  10  L.  ed.  115;  Railway  Co.,  87  Cal.  62,  11  L.  R. 
Lawrence  v.  Green,  70  Cal.  417,  A.  130;  Peoria,  etc.  R.  Co.  v. 
59  Am.  Rep.  438;  Anderson  v.  Reynolds,  88  111.  418;  Louisville, 
Scholey,  114  Ind.  553;  Farish  v.  etc.  Co.  v.  Jones,  108  Ind.  551. 
Reigle,  11  Grat.   (Va.)    697;   Balti-  And  see  Barnowski  v.  Helson,  89 


796  CARRIERS    OP    PASSENGERS.  [§    728. 

The  court  of  Minnesota  lays  down  the  following  rule:  "Where 
an  injury  occurs  to  a  passenger  through  a  defect  in  the  construc- 
tion or  working  or  management  of  the  vehicle,  or  anything  per- 
taining to  the  service  which  the  carrier  ought  to  control,  a  pre- 
sumption of  negligence  arises  from  the  happening  of  the  acci- 
dent, and  upon  such  proof  the  burden  will  devolve  upon  the  de- 
fendant to  exonerate  himself  by  showing  the  existence  of  causes 
l3eyond  his  control,  unless  evidence  thereof  appears  as  part  of 
plaintiff's  own  case. "  And  the  court  further  say :  "The  severe 
rule  which  enjoins  upon  the  carrier  such  extraordinary  care  and 
diligence  is  intended,  for  reasons  of  public  policy,  to  secure  the 
safe  carriage  of  passengers  in  so  far  as  human  skill  and  fore- 
sight can  effect  such  result. ' '  *^ 

§  728.  Contributory  negligence. — Among  the  most  frequent 
defenses  to  actions  for  personal  injuries  against  carriers  of  pas- 
sengers is  that  of  contributory  negligence  on  the  part  of  the 
plaintiff.  The  plaintiff,  as  we  have  seen,  must  be  free  from  neg- 
ligence upon  his  part,  else  he  cannot  recover.  As  to  the  necessity 
of  the  plaintiff  alleging  in  the  declaration  or  petition  that  he  was 
exercising  due  diligence,  or,  in  other  words,  was  free  from  neg- 
ligence which  contributed  to  the  injury,  the  authorities  do  not 
entirely  agree.  While  it  is  usual  to  so  allege,  or  at  least  to  allege 
facts  from  which  the  conclusion  is  inferable,  it  would  seem  that 
the  weight  of  authority  is  that  it  is  not  necessary  for  the  plaintiff 
to  aver  that  he  was  free  from  such  negligence,  the  rule  being  that 
it  is  not  necessary  to  anticipate  the  answer  of  the  adversary, 
which,  as  Hale,  C.  J.,  has  said,  is  "like  leaping  before  one  comes 
to  the  stile. ' '  This  seems  to  be  the  rule  in  England  and  in  the 
following  states  in  the  Union:  Alabama,   California,   Georgia, 

Mich.    523,    15    L.   R.   A.    33,    also  passenger  on  a  railroad  train  by 

cases  cited  in  note,  15  L.  R.  A.  35,  the  falling  of  a  berth  in  a  sleep- 

36,   37.     In   Pershing   v.   Railway  ing-car,    and    that    the    passenger 

Co.,  71  Iowa,  561,  held  "where  a  was  without  fault,  a  presumption 

passenger  is  injured  by  an  acci-  arises,    in    the    absence    of   other 

dent  to  a  train,  the  presumption  proof,  that  the  railroad  company 

of   negligence    arises   only   as    to  is  liable."     (Citing  cases.) 
those    acts    or    omissions    which  62    Smith    v.    Railway    Co.,    32 

might  have  caused  the  accident."  Minn.    1,    50    Am.    Rep.    550;    and 

N.  J.  etc.  Co.  V.  Pollard,  89  U.  S.  see  for  a  general  discussion,  cita- 

(22  Wall.)   341,  22  L.  ed.  877.     In  tions  of  authorities  and  extended 

Railway  Co.  v.  Walrath,  38  Ohio  brief    of    coimsel.      Spellman    v. 

St.    46L,    it    was    held    that    "on  Rapid    Transit   Co.,   36   Neb.    890, 

proof  of  Injuries   sustained   by   a  55  N.  W.  270,  20  L.  R.  A.  316. 


§    730.]  ACTIONS    AGAINST    COMMON    CARRIERS.  797 

Kansas,  Kentucky,  Minnesota,  Missouri,  Montana,  Nebraska, 
New  Hampshire,  New  Jersey,  North  Carolina,  North  Dakota, 
Ohio,  Oregon,  South  Carolina,  Texas,  Virgina,  Washington,  West 
Virginia,  Wisconsin,  and  New  York. 

On  the  other  hand,  there  are  a  number  of  states  which  hold 
that  the  plaintiff  must  aver  that  he  was  free  from  contributory 
negligence,  or,  at  least,  that  the  injury  occurred  without  fault 
upon  his  part:  Indiana,  Maryland,  Maine,  Massachusetts,  Mich- 
igan, Rhode  Island,  Illinois  and  Iowa. 

It  being  necessary  to  make  out  a  prima  facie  ease  to  prove  the 
allegations  of  the  declaration  or  petition,  it  therefore  follows 
that  in  the  states  where  it  is  incumbent  upon  the  plaintiff  to 
aUege  that  he  is  free  from  negligence  or  fault  which  contributed 
to  the  injury,  the  burden  of  proof  would  be  upon  him  to  so  prove 
upon  the  trial,  and  in  those  cases  where  it  is  not  necessary  so  to 
allege,  that  the  burden  of  proof  would  be  upon  the  defendant  to 
show  that  the  plaintiff  was  guilty  of  contributory  negligence ;  in 
other  words,  that  the  necessary  allegation  would  govern  as  to  the 
burden  of  proof  .^^ 

DAMAGES. 

§  729.  General  rules  applicable. — The  general  rules  applica- 
ble to  damages  which  have  already  been  discussed  as  applicable 
to  common  carriers  of  goods  are  applicable  here.  Compensation 
for  the  personal  injury  of  the  plaintiff  is  sought  either  in  com- 
pensatory, exemplary,  vindictive  or  punitive  damages.  The  rule 
always  applicable  to  every  case  where  damages  are  sought,  and 
which  must  never  be  lost  sight  of,  is  that  the  damages  recovera- 
ble must  be  the  proximate  and  natural  consequences  of  the  in- 
jury. "You  must  have  something  immediately  flowing  out  of 
the  breach  of  contract  complained  of,  something  immediately 
connected  with  it,  and  not  merely  connected  with  it  through  a 
series  of  causes  intervening  between  the  immediate  consequence 
of  the  breach  of  contract  and  the  damage  or  injury  complained 
of."«* 

§  730.  Proximate  or  remote  consequences. — ' '  Where  the  evi- 
dence and  findings  show  that  defendant,  while  running  its  trains 

63  Cases  have  been  collected  Hutch,  on  Car.,  sees.  802,  803,  and 
and  cited  and  largely  quoted  in  5      notes. 

Ency.  of  PI.  &  Pr.  1,  etc.,  and  in  «*  Hobbs  v.  Railway  Co.,  L.  R. 

10  Q.  B.   (1872),  111. 


798  CARRIERS    OF    PASSENGERS.  [§    730. 

and  locomotives  over  a  street  opposite  plaintiff's  salt  vats,  un- 
lawfully cast  over  and  on  plaintiff's  land  and  salt  vats  great 
quantities  of  dirt,  dust  and  cinders,  v^^hereby  the  amount  of  salt 
produced  by  plaintiff  was  lessened  in  quantity,  deteriorated  in 
quality  and  diminislied  in  value,  the  damages  are  not  too  remote 
or  speculative  to  justify  a  recovery. "  "^  In  an  action  for  per- 
sonal injuries  it  was  held  sufficient  if  the  damages  claimed  legiti- 
mately flowed  from  the  negligent  act  of  defendant,  and  whether 
such  damages  might  have  been  foreseen  by  the  defendant  is  im- 
material.^® In  a  ease  where  a  florist  brought  an  action  for  dam- 
ages against  a  gas  company  by  reason  of  gas  escaping  and  dam- 
aging his  plants,  undertaking  also  to  recover  for  injury  to  his 
business  reputation  on  account  of  the  failure  of  the  plants  sold 
to  customers  to  grow  as  recommended,  the  court  of  New  Hamp- 
shire held  that  the  full  damage  to  the  plants  was  a  proper  mat- 
ter of  inquiry,  but  that  a  claim  for  the  injury  of  the  plaintiff's 
reputation  on  account  of  the  sales  of  damaged  plants  was  con- 
jectural and  too  remote  to  be  allowed.  The  court  say:  "The 
special  damages  claimed  and  allowed  for  the  injury  to  the 
plaintiff 's  business  reputation  on  account  of  his  sales  of  damaged 
plants  were  not  properly  recoverable  and  must  be  disallowed  as 
too  remote.  There  are  cases  undoubtedly  where  the  tort  com- 
plained of  is  of  such  a  nature  that  the  law  will  not  nicely  attempt 
to  limit  the  amount  of  reparation,  but  will  extend  the  line  of  re- 
lief so  as  to  embrace  all  the  consequences  of  the  wrong-doer's 
conduct  although  quite  remote  from  the  original  transaction. 
But  as  a  general  rule  it  may  be  said  that  in  cases  of  tort  without 
special  aggravation,  where  the  conduct  of  the  defendant  cannot 
be  considered  so  morally  wrong  or  grossly  negligent  as  to  give 
a  right  to  exemplary  or  vindictive  damages,  the  extent  of  the 
plaintiff's  remuneration  is  restricted  to  such  damages  as  are  the 
legal  and  natural  consequences  of  the  defendant's  wrongful 
act. ' '  ®'^  And  so  expenses  incurred  by  reason  of  the  injury  are 
held  to  be  recoverable;  as,  for  example,  expenses  necessarily  in- 
curred by  the  plaintiff  while  disabled  in  procuring  competent 
help  in  his  business,  or  to  do  the  work  which  would  have  been 
performed  by  himself  had  he  not  been  injured ;  also  services  of  a 

«fi  Syracuse,  etc.  Co.  v.  Railway  s^  Dowe    v.    Winnipesaukee,    69 

Co,  60  N.  Y.  Sopp.  40.  N.  H.  312,  42  L.  R.  A.  569. 

86  Grouse    v.    Railway    Co.,    104 
Wis,  473,  80  N.  W.  752. 


§    730.]  ACTIONS    AGAINST    COMMON    CARRIERS.  799 

physician  who  is  called  to  render  medical  aid ;  also  amounts  nec- 
essarily paid  for  medicines,  and  the  value  of  the  services  ren- 
dered by  the  wife  of  the  injured  person,  have  been  held  to  be 
recoverable  by  the  husband  in  an  action  for  the  injury."^  Loss 
of  ability  to  labor  is  an  element  of  damage  which  may  be  con- 
sidered; also  the  loss  of  earnings  and  earning  capacity,  the  rule 
being  "that  the  jury  may  award  such  fair  sum  as  would  in  their 
judgment  compensate  for  the  lessened  or  destroyed  ability  to 
earn  money,  making  due  allowance  for  the  contingencies  and  un- 
certainties that  inhere  in  such  matters. ' '  "**  But  speculative 
profits — profits  on  invested  capital — are  not  recoverable  as  dam- 
ages resulting  from  one's  inability  by  reason  of  injuries  to  trans- 
act his  ordinary  business ;  such  damages  would  be  considered  too 
remote.  The  loss  of  profits  as  damages  for  a  breach  of  a  contract 
is  governed  by  the  same  rules  that  apply  to  the  recovery  of  other 
damages ;  that  is  to  say,  it  must  be  the  direct,  immediate  result  of 
the  injury.  Wherever  there  is  any  speculation  or  uncertainty, 
such  profits  are  not  recoverable.'^^ 

So  damages  for  mental  suffering,  as  from  fright,  remorse  and 
bodily  pain,  are  recoverable  when  it  can  be  shown  that  they  are 
the  direct  result  of  the  injury.  Mental  and  physical  suffering  are 
classed  as  actual  damages  when  they  are  a  natural  and  direct 
result  of  the  accident.'^^  And  it  has  been  held  that  disfigurement 
caused  by  a  tortious  injury  is  an  element  of  general  damage, 

68  Grouse  v.  Railway  Co.,  104  to  Cent.  Trust  Co.  v.  Clark,  34 
Wis.  473,  78  N.  W.  446;  Omaha  C.  C.  A.  354,  92  Fed.  293. 
Street  Ry.  Co.  v.  Emminger,  57  ^i  Omaha  St.  Ry.  Co.  v.  Em- 
Neb.  240,  77  N.  W.  675;  North  minger,  57  Neb.  240,  77  N.  W. 
Chicago,  etc.  Co.  v.  Zeiger,  78  111.  675.  In  O'Flaherty  v.  Railway 
App.  463;  Willis  v.  Traction  Co.,  Co.,  54  N.  Y.  Supp.  96,  it  was  held 
189  Pa.  St.  430,  42  Atl.  1;  Wil-  that  "injuries  from  fright  ac- 
liams  V.  City,  etc.,  119  Mich.  395;  companying  a  physical  injury  fur- 
WyTine  v.  Railway  Co.,  156  N.  Y.  nishes  a  basis  for  recovery  of 
702,  51  N.  E.  1094.  damages."     Where  a  personal  in- 

69  Denver  v.  Sherrett,  31  C.  C.  jury  to  a  little  girl  is  such  as  to 
A.  499,  88  Fed.  226;  Chicago,  etc.  seriously  impair  her  prospects  of 
Co.  V,  Postin,  59  Kan.  449;  Le-  marriage  when  she  reaches  a 
vinski  v.  Banking  Co.,  34  C.  C.  A.  marriageable  age,  such  fact  may 
452,  92  Fed.  449;  Mirandona  v.  properly  be  considered  by  a  jury 
Burg,  51  La.  Ann.  1190;  Raynor  as  an  element  of  damages  result- 
V.    Brewing    Co.,    100    Wis.    414;  ing  from  the  injury. 

Conway  v.  Mitchell,  97  Wis.  290. 


SOO  CARRIERS    OF    PASSENGERS.  .  [§    731. 

but  annoyance  caused  by  contemplation  of  such  disfigurement  is 
too  remote  to  be  considered  as  an  element  of  damages.'^^ 

§  731.  Actual,  exemplary,  punitive  or  vindictive  damages. — 
Here,  as  in  the  case  of  common  carriers  of  goods,  exemplary, 
punitive  or  vindictive  damages  can  no  doubt  be  recovered,  and 
for  the  same  reasons  and  under  the  same  circumstances ;  as  where 
there  is  wanton  or  malicious  invasion  of  the  rights  of  the  injured 
person,  where  there  is  vindictiveness  on  the  part  of  the  defend- 
ant, the  weight  of  authority  seems  to  be  that  exemplary  or  puni- 
tive damages  may  be  recovered. 

The  discussions  already  had  upon  this  subject  as  applicable  to 
common  carriers  of  goods  will  apply  here,^^  and  while  there  is 
some  disagreement  among  the  courts  with  reference  to  this  sub- 
ject, it  would  seem  that  the  real  difference  in  the  holdings  of  the 
courts  is  very  slight.  The  courts  that  seem  to  take  exceptions  to 
this  rule  are  those  which  hold  that  damages  must  be  compensa- 
tory, and  yet  it  does  not  require  a  very  great  stretch  of  the  im- 
agination, or  any  other  than  the  application  of  sound  reasoning, 
for  one  to  conclude  that  exemplary  or  vindictive  damages  as  held 
by  the  majority  of  the  courts  are,  after  all,  generally  simply 
compensatory ;  in  that  it  is  compensation  for  the  real  and  actual 
damage  to  the  person  who  has  suffered  the  injury  —  compensa- 
tion for  the  wanton  and  malicious  invasion  of  rights.  Because 
in  such  cases  the  oppression  and  vindictiveness  of  the  defendant 
who  has  been  guilty  of  perpetrating  the  wrong  cannot  be  fully 
compensated  for  in  any  other  way,  and  so  such  damages  are  after 
all  actual  and  compensatory. 

72  Giffen   v.   City    (Idaho,   1898),  fear    may    be    considered    in    ag- 

55    Pac.    545;    Kalen    v.    Railway  gravation.     Jones  v.  Railway  Co. 

Co.,    18    Ind.    App.    202,    47   N.    E.  48  N.  Y.  Supp.  914. 
694.     Where  there  is  physical  in-  73  gee  ante,  §  706,  etc. 

jury  from  which  damage  results, 


INDEX. 


[References  are  to  sections.l 

ACCIDENT,    INEVITABLE,    54,    107,    146,    147,    402.     See   Bailments;] 

Common  Carriers;   Innkeepers. 
ACTIONS  AGAINST  CARRIERS   (Ch.  VI,  Part  VI)  — 
Actions  against  common  carriers  divided — 

(1)  Against  common  carriers  of  goods. 

(2)  Against  carriers  of  passengers.     Ch.   VI. 
Actions  Against  Common  Carrier  of  Goods — 

the  basis  of  the  action,  696. 

what  actions  will  lie,  697. 

actions  ex  delicto  and  ex  contractu,  696,  697. 

option  to  bring  either,  even  if  special  contract,  698. 

advantages  of  action  ex  delicto,  699. 

for  refusal  to  carry  goods,  must  be  ex  delicto,  700. 

parties  to  the  action,  701. 

consignee  presumed  to  be  owner,  702. 

one   having   special  property,   party   to   action,   703. 

consignor,  may  bring  action  when,  704. 

party  defendant,  705. 
Pleadings. 

pleadings  in  the  action,  706. 

declaration  or  petition,  706. 

defenses,  707. 
Proofs. 

proofs  in  the  action,  708 

negligence,  proof  of,  709. 

proof  of  by  defendant,  710: 
Damages. 

of  what  damages  generally  consist,  711. 

actual,  exemplary,   punitive,  vindictive,   712. 

exemplary  confined  to  liberal  compensation,  713. 

liability  of  principal  or  master  for  acts  of  agent  or  servant, 
714. 

damages  for  refusal  to  receive  and  transport,  715. 

damages  for  loss  or  injury  in  transit,  716. 

shipper  bound  by  value  he  puts  on  his  goods,  717. 

as  to  value  when  goods  not  merchandise  and  not  marketable, 
718. 

51 


802  INDEX. 

[References  are  to  sections.] 

ACTIONS   AGAINST   CARRIERS    (continued)— 

when  goods  shipped  to  be  delivered  on  sale  already  made,  719. 

damages   for  failure   to   deliver   at  times  specified   or  within 
reasonable  time,  720. 

damage  for  failure  to  deliver;   for  misdelivery,  720. 
Actions  Against  Carriebs  of  Passengers. 

survival  of  actions  for  personal  injuries,  722. 

actions  when  injury  does  not  result  in  death,  723. 
The  Pleadings. 

pleadings  based  on  whal,  724. 

based  on  duty  of  carrier  or  contract,  724. 

declaration  or  petition  should  contain,  724. 

answer  or  plea  of  defendant,  725. 
The  Evidence. 

what  must  be  proven,  726. 

negligence,  presumption  of,  727. 

contributory  negligence,  728. 

as  to  necessity  of  alleging  it,  728. 
Damages. 

general  rules  applicable,  729. 

proximate  or  remote  consequences,  730. 

what  damages  are  recoverable,  731. 

actual,  exemplary,  punitive,  vindictive,  731. 
ACT  OF  GOD,  54,  55,  105,  107,  353,  469,  470,  471,  472,  473,  504,  505,  588, 
655.     See  Bailments,  Ordinary;   Innkeepers;   Common  Cabbiebs 
OF  Goods;   Carriers  of  Passengers;   Carriers  of  Baggage. 
when  will  excuse  bailee's  liability,  54 

see  Pledge  and  Pawn. 
AGENTS— 

the  bailment  relation  has  element  of  agency,  43. 

the  bailee  agent  of  the  bailor,  43. 

expenditures  by  bailee  to  preserve  property,  bailor  liable  for,  4S. 

bailee  may  contract  in  bailor's  name  to  preserve,  44. 

agent  may  create  bailment  for  principal,  15. 

agent,  actual  or  apparent,  may  receive  goods,  437. 

who  are  agents  of  carrier  authorized  to  receive,  438. 

when  initial  carrier  agent  of  connecting  carrier,  533,  535. 

see    Bailments,    Ordinary;    Innkei^pebs;    Common    Cabbiebs; 
Post  Office  Department. 
AGISTERS— 

no  lien  at  common  law,  161. 
reasons  why,  161. 

some  courts  hold  agister  has  a  lien,  161. 
ANIMALS— 

bailee  must  feed  and  care  for,  44. 
animals  and  offspring,  bailment  of,  110. 

see  Agisters,  161,  etc.;  Animate  Freight,  486. 


INDEX.  803 

[References  are  to  aectlons.] 

ANIMALS    (continued)  — 

inherent  nature  of,  as  to  liability  for,  487. 

see  Carriers  of  Live  Stock,  487-491;   Common  Caeriebs;  Inn- 
keepers;  Pledge  and  Pawn. 
ASSIGNING  OR   SELLING   BAILED   OR   PLEDGED   PROPERTY   BY 
BAILEE— 
see  Bailments;    Pledge  and  Pawn. 
exercising  unauthorized  dominion  over,  conversion,  126. 
assuming  to  sell  or  assign,  126. 
BAGGAGE  OR  PASSENGER'S  EFFECTS  (Ch.  V,  Part  VI)  — 
kinds  of  baggage,  672. 
ordinary  baggage,  definition,  673. 
to  determine  what  is  baggage — 

(1)  station  in  life  of  passenger  considered,  674 

(2)  business  or  occupation  of  passenger  considered,  675. 

(3)  the  object  of  the  journey,  676. 

(4)  the  effects  must  be  personal  to  the  passenger,  677. 

(5)  must  be  reasonable  in  amount,  678. 
what  is  not  baggage,  679. 

sample  trunks  or  commercial  baggage  and  effects,  680. 
excess  baggage,  payment  for,  681. 

carrier  may  make  reasonable  regulations  concerning,  682. 
good  faith  required  of  passenger  as  to,  683. 
owner  of  baggage  should  be  a  passenger,  684. 
owner  accompanying  baggage,  685. 
free  pass,  baggage  of  one  riding  on,  686. 
liability  of  carrier  for  baggage,  687. 
hand  baggage,  688. 

liability  of  carrier  depends  on  control  of  baggage,  683. 
sleeping-car  companies,  as  to  baggage,  689. 
theft  of  by  servants,  liability  of  company,  690. 
a  high  degree  of  ordinary  diligence  required  as  to,  691. 
mixed  custody  of  baggage  by  passenger  and  carrier,  692. 
Steamship  Company's   Liability  foe  Baggage,   692. 

steamship  company's  liability  as  innkeeper,  692. 

baggage  of  steerage  passengers,  693. 

termination  of  liability,  694. 

when  the  passenger  should  receive  baggage  at  terminus  of 
journey,   694. 

when  carrier  should  deliver  bagage  to  passenger,  694. 

failure  of  carrier  to  deliver  baggage,  695. 

actions  for  loss  or  damage  to,  see  Actions  Against  Carbiebs 
OF    Passengers. 
BAILMENT,  ORDINARY  (Ch.  I,  Part  I)  — 
history,  origin  and  growth  of,  1. 
definition  of  and  criticisms  of  definitions  of,  3. 
Sir  William  Jones'  interpretation  of,   (Note  1)   2. 


804  INDEX. 

[References  are  to  sections.] 

BAILMENT,  ORDINARY  (continued)  — 
interpretation  in  ttie  English  courts,  2. 
Judge  Storey's  definition  and  criticism,  3. 
a  factor;   a  bailee,  3. 
Sir  William  Jones'  essay  on,  3  and  note. 

purpose  of  bailment  may  necessitate  change  In  property  bailed,  5. 
change  would  affect  rule  that  property  must  be  redelivered,  5. 
property  of  like  specie  and  value  may  be  returned,  5-8. 
Roman  mutuum,  9. 
grain  stored  in  elevators,  7. 
identical  grain  not  redelivered,  7. 
grain  stored  in  flouring  mill,  8. 
not  grain  but  flour  for  grain,  8. 
parties  to  bailment — bailor,  bailee,  10. 
who  may  be  bailor  and  bailee,  11. 
competency  of  parties,  12. 

one  incompetent  to  contract  may  become  bailee,  12. 
one  receiving  property,  if  incompetent,  liable  as  bailee,  12. 
disability  a  shield,  not  a  sword,  13. 

infant  liable  when  injures  or  misappropriates  property,  13, 
theory  of  the  liability  of  an  infant,  14. 
not  upon  the  contract  but  for  tort,  14. 
agent  may  create  bailment  for  principal,  15. 
corporation  may  be  bailor  or  bailee,  16. 
some  common  examples  of  bailment,  4. 
kind  of  property  that  may  be  subject  of  bailment,  17. 
personal  property  only,  subject  of  bailment,  17. 
incorporeal  personalty  may  be,  17. 
stocks,  bonds,  etc.,  17. 
usual  test,  17. 

delivery  and  acceptance  are  essentials,  18. 
summary  of  essentials  to,  19. 
competency  of  parties,  19. 
must  be  an  actual  delivery,  19. 
bailee  must  have  control,  19. 
may  be  for  cure,  to  perform  labor  on,  to  sell,  19. 
object  of  must  be  expressed,  19. 
object  of  must  be  understood  by  parties,  19. 
must  be  contract  express  or   implied,   19. 
essence  of  relation  is  possession  of  property,  19. 
one  cannot  be  made  bailee  against  his  will,  19. 
bailee  must  know  he  has  possession,  19. 
title  of  the  bailor  of  property,  20. 
bailee  cannot  dispute  his  bailor's  title,  20. 
bailor  may  sell  or  incumber  the  property,  21. 
bailee's  title,  possession,  21. 
bailor  must  exercise  good  faith,  22. 


INDEX.  805 

[References  are  to  sections.] 

BAILMENT,  ORDINARY  (continued)  — 
must  not  expose  bailee  to  danger,  22. 
bailment  or  a  sale,  23. 
when  not  a  sale,  23. 
when  a  bailment,  23. 
grain  commingled  in  storage,  24. 
when  sale,  when  bailment,  24. 
bailment,  sale  or  gift,  how  determined,  25. 
Of  the  Classification  of  Bailments  (Ch.  II,  Part  I). 

Roman  classification,   26. 

the  several  kinds  of  bailment,  26. 

Story's  division  of  locatio  bailments,  26. 

modern  classification  upon  the  theory  of  recompense,  27. 

compensation  governs,  27. 

the  modern  classification,  28 

modern  classification  includes  earlier,  28, 

the  most  general  subdivision,  29. 

bailments  are  ordinary  and  exceptional,  29. 

ordinary  bailments,  29. 

exceptional  bailments,  29. 

postmasters,  innkeepers,  common  carriers,  29. 

chart  showing  classification  of  bailments,  30. 
Rights,  Duties  and  Liabilities  Generally  of  Bailor  and  Bailee 
(Ch.  Ill,  Part  I). 

gratuitous  and  non-gratuitous  bailments,  32. 

this  determines  diligence  required,  32. 

consideration  for  the  bailment,  33. 

liability  rests  on  benefit  to  the  parties,  32. 

consideration  supporting  the  contract,  33. 

negligence  or  diligence  governed  by  benefit,  34. 

chart  showing  duties  and  liabilities,  35. 

diligence  and  negligence  defined,  36. 

are  relative  terms,  36. 

definition  generally  accepted,  37. 

every  case  ruled  by  its  own  circumstances,  38. 

high  diligence,  gross  diligence,  defined,  39. 

negligence  and  fraud  distinguished,  40. 

diligence  and  negligence  question  of  law  and  fact,  41. 

classification  of  conditions  and  circumstances,  42. 

diligence   or   neglignec   depends   often    on   kind   of   property,, 
time,  place,  season,  etc.,  42. 
Some  Ftjbtheb  General  Principles  as  to  Rights  and  Liabilities 
(Ch.  IV,  Part  I). 

bailment  relation  an  agency,  43. 

bailee's  right  to  make  expenditures  as  such,  43. 

may,  to  preserve  the  subject  of  the  bailment,  43. 

may  contract  for  care  of  bailed  property  when  necessary,  44. 


806  INDEX. 

[References  are  to  sections.] 

BAILMENT,  ORDINARY  (continued)  — 

if  property  is  animate,  may  feed  and  care  for,  44. 

bailee's  right  to  use  the  property,  45. 

general  rule  is,  he  must  not  use  it,  45. 

exceptions  when  use  is  necessary  or  beneficial  to  property, 
45. 

unwarranted  use  of,  bailee  liable,  46. 

the  use  the  property  is  put  to,  46. 

bailee  may  protect  the  property  and  his  interest,  47. 

may  bring  an  action  if  necessary,  47. 

gratuitous  skilled  bailee,  liability,  48. 

must  exercise  his  ordinary  skill,  48. 

rule  not  always  carefully  stated,  49. 

degrees  of  diligence  and  negligence,  49. 

special  deposit  in  bank,  50. 

determining  negligence,,  51. 

honesty  and  good  faith  demanded,  52. 

bailee  cannot  sell,  pledge,  or  claim  ownership,  52. 

if  would  assert  ownership  must  first  return  property,  52. 

bailee  may  protect  himself  against  claim  of  third  parties,  53. 

compel  parties  claiming  to  interplead,  53. 

what  would  excuse  liability,  54. 

what  will  excuse  loss  or  injury  of  property,  54.' 

act  of  God,  public  enemy,  irresistible  force,  inevitable  accident, 
fire,  robbery,  54. 

if  bailee  obtains  possession  unlawfully  or  tortiously,  liable  for 
injury  or  loss,  55. 

not  shielded  by  act  of  God  or  other  excuses,  55. 

bailee  entitled  to  reimbursement,  when,  56. 

when  property  claimed  by  third  parties,  56. 

when  bailor  cannot  sustain  action  against  third  party,  56. 

bailee  may  have  action  against  third  party,  when,  57. 

bailee  may  protect   himself,   57. 

liability  modified  or  enlarged  by  contract,  58. 

bailee  can  lessen  liability,  how  far,  59. 

bailee  cannot  contract  against  his  own  fraud  or  gross  negli- 
gence, 59. 

redelivery  to  bailor,  60. 

general  rule  is,  must  redeliver  property,  60. 

some  exceptions  to  the  rule,  60. 

not  always  required  to  deliver  the  specific  property,  61. 

excuses  for  non-delivery,  62. 

when  loss  without  fault  of  bailee,  62,  par.  1. 

when  property  has  been  delivered  to  true  owner,  62,  par.  2. 

when  deprived  of  property  by  due  process  of  law,  62,  par.  3. 

what  the  duty  of  bailee  when  goods  taken  on  legal  process,  62, 
par.   3. 


INDEX. 


[References  are  to  sections.] 


807 


BAILMENT,  ORDINARY  (continued)  — 

when  property  demanded  of  him  by  other  parties,  62,  par.  4. 
when  excused  by  the  terms  of  the  contract,  62,  par.  5 
conversion  of  the  property,  63. 
what  amounts  to,  63. 

bailee's  right  to  compensation  and  lien,  64. 
agreement  for  compensation  necessary  to  create  lien,  65. 
if  no  statute,  bailee  has  lien  by  common  law,  66. 
common-law  lien,  definition  of,  66. 
two  kinds  of  lien,  67. 

particular  or  specific  lien,  definition  of,  67. 
general  lien,  definition  of,  67. 
must  be  delivery  to  the  bailee  to  create  lien,  68. 
possession  of  the  property  an  essential,  69. 
finder  of  property  his  compensation — lien,  70. 
finder  of  property  may  have  lien,  when,  70. 
extinction  of  lien,  71. 
by  payment  or  tender,  71. 
lien  may  be  waived,  how,  72. 

refusal  to  deliver  for  other  reasons  than  lien,  72. 
lien  waived  by  an  agreement  to  give  credit,  72. 
Hen  waived  by  parting  with  possession  of  property,  72. 
lien  once  lost  cannot  be  revived,  73. 
bailor's  right  to  compensation,  74. 
may  arise  from  express  or  implied  contract,  74. 
enforcement  of  lien  of  bailee,  75. 
cannot  foreclose  and  sell  property,  75. 
can  sell  by  statutes  regulating  sale,  75. 
Tebmination  of  Bailments. 
the  several  ways  of,  76. 

(1)  By  expiration  of  the  time  for  which  the  property 

was  bailed,  77. 

(2)  By  reason  of  the  accomplishment  of  the  object, 

78. 

(3)  By  act  of  the  parties,  79. 

possession  of  property  cannot  be  withheld  from  bailor  or 
if  bailment  gratuitous,   (a),  79. 

no  consideration  for  such  a  contract,   (a),  79. 

bailor  may  revoke  at  will,  (a),  79. 

but  must  be  reasonable,   (a),  79. 

bailor  may  terminate  when  no  fixed  time  of  accomplish- 
ment of  bailment,   (b),  79. 

may  terminate  when  bailee  fails  to  return  property  at 
time  fixed,   (c),  79. 

when  in  violation  of  agreement  bailee  refuses  to  return 
property,   (c),  79. 

mere  declaration  of  ownership  not  enough,  (e),  79. 


608  INDEX. 

[References  are  to  sections.] 

BAILMENT,  ORDINARY  (continued)  — 

but  if  coupled  with  action  showing  denial  of  bailor's  title, 

(e),  79. 
or  if  unequivocal  act  showing  holding  adverse  to  bailor, 

(e),  79. 
by  sale,  pledge  or  act  of  ownership  by  bailee,   (f),  79. 
by  abuse  and  injury  of  property,  (g),  79. 
the  bailee  may  terminate  the  bailment,  (h),  79. 

when  bailment  for  sole  benefit  of  bailor,   (h),  79. 
should  give  reasonable  notice  to  bailor,  (h),  79. 
If  bailment  for  benefit  of  both  parties,  terminating,  (1),  79. 
cannot  terminate  unless  breach  of  terms  of  contract,   (1), 

79. 
bad    faith,    fraud,    dishonest    dealing,    failure    to    execute 

trust,  (i),  79. 
unauthorized  use  of  property  resulting  in  injury,  (i),  79. 
unwarranted  action  inconsistent  with  bailment,  (i),  79. 
when  notice  of  intention  necessary,  (i),  79. 

(4)  By  operation  of  law,  80. 

(5)  By  destruction  of  the  bailed  property,  81. 

(6)  The  death  of  the  bailee,  82. 

if  bailment  gratuitous,  death  of  bailee  terminates,  82. 

if  bailment  non-gratutious,  82. 

termination  would  depend  upon  contract  creating  relation, 

82. 
if  bailment  does  not  require  personal  or  professional  skill 

of  bailee,  terminates,  82. 
if    personal    representatives    could    carry    out    bailment, 

death  would  not  terminate,  82. 
if    personal    skill    of    bailee    the    object   of,    death    would 

terminate,  82. 

(7)  By  incompetency  of  parties,  83. 
question  of  fact  for  the  jury,  83. 

Liability  of  Bailoe  and  Bailee  when  Bailment  fob  Sole  Beneftt 
OF  Bailob  (Ch.  VI,  Part  I), 
these  bailments  of  two  kinds,  84 

(1)  Mandatum,  definition  of,  85. 

to  create  mandate  three  things  necessary,  85. 

(2)  Depositum,  definition  of,  86. 
use  of  the  deposit,  87. 

depository  generally  no  right  to  use  deposit,  87. 

when  his  duty  to  use  it,  87. 

when  assent  to  use  presumed,  87. 

special  not  general  deposit,  88. 

Qiicsi-deposits,  definition  of,  89. 

distinction  between  depositum  and  mandatum.  91. 

a  contract  relation,  92. 


INDEX.  809 

[References  are  to  sections.] 

BAILMENT,  ORDINARY  (continued)  — 

the  bailee's  liability,  93. 

slight  diligence  required  of  bailee,  93. 

liable  for  only  gross  negligence,  93. 

degrees  and  negligence  ignored  by  some  authorities,  94, 

weight  of  authority  upholds  use  of,  94. 

sole  benefit  of  bailor,  what  is  meant  by,  95. 

even  indirect  bailment  changes  class,  96. 

least  benefit  to  bailee  places  bailmnet  in  another  class,  96. 

no  matter  how  slight  the  benefit,  96. 

bailee's  duty  when  notified  of  facts  requiring  special  care, 
97. 

failing  to  obey  instructions  or  terms  of  bailment,  98. 
termination  of  the  relation  and  bailor's  remedies,  99. 
LiABrciTT  OF  Bailor  and  Bailee  When   Bailment  fob  the  Sole 
Benefit  of  the  Bailee  (Ch.  VII,  Part  I). 
commodatum,  definition  of,  100. 

bailment  must  be  for  the  sole  benefit  of  the  bailee,  101. 

slightest  benefit  to  bailor  would  change  class  of,  101. 

the  liability  of  the  bailee,  102. 

bailee  held  to  high  diligence,  102. 

liable  for  slight  negligence,  102. 

extraordinary  care  of  property  required,  102. 

infant  bailee  liable  in  action  of  tort,  102. 

bailment  must  be  for  legal  purpose,  103. 

bailor  need  not  be  absolute  owner  of  property,  104. 

qualified  or  special  property  sufficient,  104. 

thief  may  be  bailor  of  property,  104. 

finder  of  property  may  be  bailor,  104. 

the  right  conferred  by  contract  of  bailment,  105. 

bailee  has  possessory  interest  in  chattel,  may  defend  it, 
105. 

may  use  property  as  permitted  by  contract  express  or  im- 
plied, 105. 

liable  for  loss  if  result  of  unauthorized  use,  105. 

if  loss  by  reason  of  act  of  God  or  public  enemy  will  not 
be  excused,  when,  105. 

obligations  of  borrower,  106. 

bailee's  defenses,  107. 

where  loss  occasioned  by  act  of  God,  public  enemy,  irre- 
sistible force  or  inevitable  accident,  107. 

but  notwithstanding  this,  high  diligence  required,  107. 
Injury  or  loss  must  be  without  fault  of  bailee,  108. 

slightest  neglect,  exposure  of  property,  liable  for,  108 
ordinary  and  extraordinary  expenses,  when  can  pay,  109. 
ordinary  expense  bailee  must  pay,  109. 
extraordinary,  may  collect  of  bailor,  109. 


810  INDEX. 

[References  are  to  sections.] 

BAILMENT,  ORDINARY  (continued)  — 
Redelivby  of  the  Thi>'g  Bailed,  110. 

at  termination  of  bailment,  duty  to  redeliver,  110. 

must  redeliver  with  all  natural  accessions,  110. 

if  bailment  animals,  with  offspring,  110. 

if  bonds  or  security,  with  interest  accumulated  or  collected, 

110. 
cannot  retain  property  or  accessions  for  debts  due  him.  111. 
exception  where  compelled  to  pay  extraordinary  expenses.  111. 
may  in  some  cases  have  lien  on  property,  111. 
Liability  of  Bailob  and  Bailee  when  Bailment  fob  Benefit  ob 

Both  (Ch.  VIII). 
mutual-benefit  bailments,  nature  and  extent  of,  112. 
mutuality  of  benefit  fixes  liability,  112. 
exceptional  bailments  belong  to  this  class,  112. 
locatio  or  hiring  bailment  belong  to  this  class,  112. 
pledge,  pawn,  and  innkeepers  in  this  class,  112. 
locatio  et  eonductio  bailments,  definition  of,  113. 
definitions  further  explaining,  114. 
general  view  of,  locatio  eonductio,  115. 
how  these  bailments  created,  115. 
commonly  called  hiring  bailments,  116. 
the  hiring  bailments  embrace,  117. 
the  letting,  the  hiring,  and  work  and  labor  upon  the  thing, 

117. 
general  subdivisions  of  the  hiring  bailment,  118. 
Locatio  Rei  Bailments   (Ch.  IX,  Part  I), 
the  hiring  of  the  thing  for  use,  119. 
this  class  includes,  119. 
a  contract  relation,  120. 
bailor's  title — warranty  of  bailor,  121. 
failure  of  subject  to  action,  121. 
bailee's  possession,  122. 
property  interest  of  bailee  in  thing,  122. 
duty  of  bailor  to  give  bailee  notice  of  defects  rendering  thing 

unfit  for  use  or  dangerous,  123. 
when  action  against  bailor  may  result,  123. 
bailee  must  exercise  good  faith  in  carrying  out  the  contract 

of  bailment,  124. 
bailee  must  not  misuse  the  thing,  124. 
conversion,  what  constitutes,  125. 
an  illegal  control  held  to  constitute,   125. 
intentional  deviation  from  proper  use,  125. 
exercising  unauthorized  dominion  and  control  over  property, 

conversion,  126. 
bailor's  right  against  third  parties,  127. 
against  bailee,  127. 


INDEX.  811 

[References  are  to  sections.] 

BAILMENT,  ORDINARY  (continued)— 

bailee's  liability  to  third  parties  for  negligent  use,  128. 
bailee's  negligence  not  imputable  to  bailor,  128. 
bailee's  right  to  assign  his  interest,  129. 
when  such  assignment  considered  a  conversion,  129. 
extraordinary  and  incidental  expenses  of  bailment,  130. 
termination  of  this  bailment,  131. 
LocATio  Opebis  Bailments  (Ch.  X,  Part  I). 

the  hiring  and  labor  of  service  upon  the  thing,  132. 

the  kinds  of  bailments  embraced  herein,  132. 

the  hiring  of  work  and  labor  upon  the  thing,  133. 

belongs  to  the  mutual-benefit  class,  133. 

a  contract  relation,  134. 

obligations  of  the  employer,  the  bailor,  135. 

the  duty  of  the  bailee,  135. 

bailee  has  special  property  in  the  thing,  136. 

whether  the  transaction  a  sale  or  a  bailment,  137. 

when  profits  from  the  product  divided,  138. 

when  the  thing  is  destroyed  during  the  carrying  out  of  the 

agreement,  139. 
when  destroyed  after  it  is  finished,  139. 
the  duty  of  the  bailee,  140. 
when  work  performed  by  the  job  and  loss  or  injury  occurs 

before  completion,  141. 
work  must  be  done  as  contracted,  142-143. 
a  summary  of  the  discussion,  143. 
not  every  failure  will  deprive  bailee  of  entire  compensation, 

144. 
if  the  failure  to  perform  is  the  fault  of  the  bailor,  145. 
if  prevented  by  inevitable  accident  or  irresistible  force,  146. 
bailee's  duty  to  reclaim  property  injured  or  temporarily  lost, 

147. 
this  his  duty,  even  if  loss  occasioned  by  inevitable  accident  or 

irresistible  force,  147. 
bailee  may  do  work  by  an  agent  or  servant,  when.  148. 
where  skill  as  well  as  care  is  required,  149. 
must  exercise  skill  adequate  to  performance  of  the  work,  150. 
if  bailee  purports  to  have  skill,  must  use  it,  151. 
ordinary  skill  required,  152. 
what  is  ordinary  skill  in  this  class,  152. 
degree  of  skill  and  diligence  in  certain  cases,  153. 
increases  with  difficulty  of  performance,  delicacy  of  particular 

work,  153. 
to  what  extent  agent  or  servant  may  be  employed  for  skilled 

work,  154. 
Defenses  of  the  Bailee,  155. 

to    show    that   the    skill    and    care    exercised    were    ordinary, 

155  (1). 


812  INDEX. 

[References  are  to  sections.] 

BAILMENT,  ORDINARY  (continued)  — 

that  the  bailor  dictated  how  the  work  should  be  done,  155  (2). 

that  the  Injury  occurred  on  account  of  defects  in  property  or 
material  furnished,  155   (3). 

that  bailor  refused  to  furnish  necessary  funds,  155  (4). 

that  bailor  knew  that  bailee  had  not  the  required  skill,  155 
(5). 

as  to  notice  to  bailor  that  claims  for  defects  must  be  made 
within  a  certain  time,  156. 

when  will  failure  of  bailor  to  give  notice  waive  defects,  157. 

if  bailor  knows  should  give  notice  of,  157. 

especially  so  if  silence  would  impose  greater  loss,  157. 

title  to  material  used  passes  to  bailor  by  accession,  158. 
The  lien  of  the  Bailee  in  this  class  of  bailments,  159. 

priority  of  the  lien,  160. 
Agisters  and  Liveky-stable  Men  have  no  lien  at  common  law,  161. 

the  reasons  discussed  and  cases  cited,  161 

the  lien  by  statute  to  such  persons,  162. 

when  chattel  mortgage  takes  precedence  over  lien,  163. 
Locatio  Custodle  Bailments  (Ch.  XI  Part  I). 

the  letting  of  care  and  custody  of  the  thing  for  hire,  164. 

what  is  embraced  in  this  subdivision,  165. 

depositum  belongs  to  this  class,  166. 
Warehousemen,  How  Defined,  167. 

public  warehouses  and  bonded  warehouses,  168. 

all  warehouses  public  or  quasi-puhlic,  170. 

delivery  to  create  liability,  171. 

whether  a  sale  or  a  bailment  when  property  delivered,  172. 
The  Wakehouse  Receipt,  173. 

at  common  law  warehouse  receipt  technically  not  negotiable, 
174. 

negotiability  of  receipt  provided  by  statute,  175. 

warehouseman  not  permitted  to  impeach  his  receipt,  176. 

warehouseman  may  insure  the  property,  177. 

usage  and  general  course  of  business  to  a  certain  extent  de- 
fines the  duty  of  warehouseman  as  bailee,  178. 
Stoeage-house  Keepers  defined,  179. 

business  principally  caring  for  furniture,  articles  and  chattels 
to  be  returned  in  kind,  179. 

carries  on  business  of  moving  goods,  etc.,  179. 

must  comply  with  the  contract  of  storage,  180. 

some  of  the  duties  of  the  bailor  or  owner  of  goods,  181. 

should  give  bailee  full  knowledge  of  kind  of  goods,  181 

dangerous  articles — duty  and  liability,  182. 

when  the  liability  of  the  storage-house  keeper  begins,  183. 

when  the  liability  ends,  184. 


INDEX,  813 

[References  are  to  sections.] 

BAILMENT,  ORDINARY  (continued)  — 

storage  house  keeper  and  warehouseman  the  same,  185. 

when  a  common  carrier  is  a  warehouseman,  186. 

as  when  goods  are  awaiting  delivery,  187. 

three  classes  of  holdings  in  respect  to  this,  187. 

first  class:   Carrier  a  warehouseman  when  goods  arrive  at  ter- 
mination, 187. 

second    class:   New    Hampshire    rule — after    reasonable    time, 
188. 

third  class:  After  proper  notification  to  consignee  of  arrival 
and  reasonable  time,  189. 
Whabfingers,  Definition,  190. 

when  liability  begins,  191. 

when  liability  ends,  192, 
Factors  or  Commission  Merchants,  193. 
Safe-deposit  and  Trust  Companies,  194. 

the  relation  between  the  depositor  and  the  company,  195. 

the  nature  of  the  relation,  196. 

not  that  of  bailor  and  bailee,  196. 

more  nearly  that  of  landlord  and  tenant,  196. 

the  nature  of  the  bailment  and  diligence  required,  195-196. 
other  classes  of  custodians,  197. 

liability  of  bailee  in  custodice  bailments,  198. 

when  does  the  liability  commence  and  end,  199. 

as  to  proper  place  and  kind  of  storage,  200. 

diligence  must  keep  pace  with  improvements,  201. 

negligence,  proof  of,  202. 

burden  of  proof  of  negligence,  does  it  shift,  203. 

question  summed  up  and  rule  settled,  204. 
contributory  negligence,  205. 

when  applicable  as  defense  in  bailments,  205. 
negligence  of  servants,  206. 

unauthorized  use  of  chattels,  207. 
delivery,  misdelivery,  non-delivery,  208. 

general  rule  that  the  bailee  must  redeliver,  208. 

bailee  liable  for  misdelivery,  208. 
confusion  of  goods,  209. 

criminal  liability  of  bailee,  embezzlement,  210. 

termination  of  the  relation,  211 

compensation,  lien,  213. 

actions  against  the  warehouseman,  214. 
BAILOR  AND  BAILEE— 

parties  to  bailments,  and  who  may  be,  10,  11. 
competency  of  parties,  12. 
disability  of,  a  shield  not  a  sword,  13. 
theory  of  the  liability  of  an  infant  bailee,  14. 
corporation  may  be  a  bailor  or  bailee,  16. 


814  INDEX. 

[References  are  to  sections.] 

BAILOR  AND  BAILEE  (continued)  — 

bailor  may  sell  or  incumber  the  property  bailed,  21. 

bailor  must  exercise  good  faith,  must  not  expose  bailee  to  danger,  22. 

bailor's  title  to  property,  20. 

as  to  possession  and  knowledge  of  property,  19. 

see  Property  (kind  of,  subject  of  bailment) ;  Bailment,  Obdi- 
naby;  Rights,  Duties  and  Liabilities  Generally  of  Bailor 
AND  Bailee  (ch.  Ill,  Part  I;  also  ch.  IV);  Liability  of 
Bailor  and  Bailee  when  Bailment  for  Sole  Benefit  of 
Bailor  (ch.  VI,  Part  I) ;  When  for  the  Sole  Benefit  of  the 
Bailee  (ch.  VII,  Part  I);  Liability  of  Bailor  and  Bailee 
WHEN  Bailment  fob  Benefit  of  Both;  Locatio  Rei  Bail- 
ments; LocATio  Operis. 

BAILMENTS   FOR   SOLE   BENEFIT  OF   BAILOR    (see   Index,   Bail- 
ments, Ordinary). 

BAILMENTS  FOR   SOLE   BENEFIT  OF  BAILEE    (see  Index,   Bail- 
ments, Ordinary). 

BAILMENTS  FOR  THE  BENEFIT  OF  BOTH  BAILOR  AND  BAILEE 

(see  Index,  Bailments,  Ordinary). 
BENEFIT   (see  Bailments,  Ordinary). 

BILL  OF  LADING}— 

as  the  subject  of  a  pledge,  discussed,  253. 

nature  of,  receipt,  a  contract,  253. 

bill  of  lading  a  symbol  of  the  property,  253. 

indorsed  and  delivered  operates  as  delivery  of  property,  253. 

quasi  negotiable  in  its  nature,  253. 

may  pledge  property  by  indorsement  and  delivery,  253. 

delivery  by  pledgor,  254. 

Indorsement  in  blank  sufficient,   254. 

mere  delivery  of  bill  held  enough  to  pledge  property,  255. 

with  draft  attached,  256. 

how  far  bill  negotiable,  257. 

l)ona  fide  holders  of,  who  are,  258. 

rights  of  hona  fide  holders  of,  259. 

obtained  from  agent  or  one  apparently  owner,  260. 
see  Common  Carriers  of  Goods, 
bill  of  lading  as  proof,  462. 
bill  both  a  contract  and  receipt,  462. 
as  a  receipt  may  be  explained  and  modified,  462. 
the  bill  in  the  hands  of  innocent  consignee  who  has  paid  draft,  462. 
as  to  rights  of  bona  fide  holder  of  bill;  no  goods  delivered,  authori- 
ties not  harmonious,  463. 
conclusiveness  of  bill  of  lading  as  to  condition,  weight,  value,  464. 
by  whom  issued,  465. 

see  Common  Carriers  of  Goods  (ch.  V,  Part  V) ;  Pledge  and 
Pawn;  Non-negotiable  Instruments,  253,  254,  256,  257,  258. 


INDEX.  815 

[References  are  to  sections.] 
BOARDING-HOUSE  KEEPERS,  BOARDERS,   336,   387    (see   Innkeep- 

EBS). 

boarder  or  guest,  distinguished,  336. 

length  of  time  or  contract  for  rates  will  not  always  determine,  337. 
liability  of  boarding-house  keeper  ordinary  diligence.  364. 
no  lien  to  secure  boarding-house  keeper's  compensation,  387. 
BROKER— 

stocks  held  on  margins,  purchased  by  broker,  320. 

see  Pledge  and  Pawn,  320,  321,  322. 
BURDEN  OF  PROOF   (see  Actions;    Evidence)., 
CANAL  COMPANIES— 

are  not  common  carriers,  when,  427. 
CARRIERS    (Ch.  I,  Part  V)  — 
definition  of  a  carrier,  392. 
history  of  carriers,  393. 
importance  and  scope  of  the  subject,  394. 
carriers  strictly  a  bailment  relation,  395. 
generally  of  mutual-benefit  class,  395. 
may  be  gratuitous  carriers,  395. 

carriers  of  two  kinds:   private  and  public  or  common,  396. 
also  carriers  by  water  and  carriers  by  land,  396. 
Peivate  ob  Special  Carbiebs,  397. 

do  not  belong  to  exceptional  bailment  class,  397. 

duties  and  liabilities  of  private  or  special  carriers,  398. 

two  kinds:   carriers  for  hire  and  gratuitous,  398. 

carriage  of  goods  or  passengers  for  hire,  399. 

ordinary  diligence  required  if  for  hire,  399. 

increasing  or  diminishing  liability,  400. 

may  limit  liability  if  free  from  fraud,  401. 

excused  from  liability,  when,  402. 

act  of  God,  public  enemy,  inevitable  accident,  robbery,  burg- 
lary, larceny,  excuses  private  carrier,  402. 

compensation  and  lien  of  private  carrier,  403. 

may  regulate  compensation  by  contract,  403. 

has  no  lien  upon  goods  carried,  404. 

private  or  special  carrier  without  hire,  gratuitous,  405. 
liable  for  gross  negligence,  405. 
Public  ob  Common  Cabriees  (Ch.  II,  Part  V)  — 

exceptional  bailees,  29c. 

mutual-benefit  bailments,  112. 

locatio  operis  mercium  vehendarum,  132. 

when  a  warehouseman,  186,  187. 

definition  of  a  common  carrier,  406. 

first  essential:  requisite  of,  407. 

must  undertake  to  carry  for  all,  407. 

cannot  select  customers,  407. 

second  essential:   if  refuses,  action  will  lie,  408. 


816  INDEX. 

[References  are  to  sections.] 

CARRIERS    (continued)  — 
the  true  test,  409. 

may  limit  employment  to  certain  kind  of  property,  410. 
as  freight  and  passenger  or  express  matter,  etc.,  410. 
third  essential:   carriage  must  be  for  hire,  411. 
common  carriers  by  water,  412. 
who  are  common  carriers,  413. 
tugs  and  tow  boats,  414. 
are  they  common  carriers,  414. 
holdings  not  harmonious,  415. 
cases  holding  aflSrmative  and  negative,  415. 
ferry  boats,  416. 
Common  Cakeiers  by  Land,  417. 
hackmen  and  omnibusmen,  418. 
truckmen,  cartmen,  owners  of  wagons,  419. 
street-car  companies,  420. 
express  companies,  fast-freight  lines,  dispatch  companies,  421, 

422. 
transfer  companies,  423. 
baggage-delivery  companies,  423. 
railroad  companies,  424. 
receivers  and  trustees,  425. 

not  all  railroad  companies  common  carriers,  426. 
who  are  not  common  carriers,  427. 
warehousemen  and  forwarding  agents  not,  427. 
sleeping-car  companies,  427. 
mail  contractors,  427. 

canal  companies  to  certain  extent,  not,  427. 
Cabbiers  of  GrOODS — Some  Essentials  Fixing  Liability    (Ch.  Ill, 

Part  V). 
some  presumptions,  428. 
when  courts  will  presume  persons  or  companies  to  be  common 

carriers,  428. 
certain  facts  must  be  proven  to  fix  liability,  429. 
delivery  of  property  for  transportation,  430. 
delivery  a  primary  essential,  430. 
surrendering  the  entire  control  of  goods,  430. 
delivery  for  immediate  shipment,  430. 
when  delivered  and  received  for  immediate  shipment  liability 

commences,  431. 
when  liability  commences,  431. 
when  goods  really  in  transit,  431. 
carrier  may  by  reasonable  regulations  fix  place  of  delivery  for 

shipment,  431. 
what  not  a  delivery,  431. 
leaving  on  platform  or  dock,  or  along  road  in  an  unusual  place, 

not  a  delivery,  431. 


INDEX.  817 

[References  are  to  sections.] 

CARRIERS    (continued)  — 

usage  and  custom  as  to  delivery,  "132. 

notice  of  goods  delivered,  effect  of,  433. 

time  of  delivery,  434. 

by  whom  must  be  made  and  to  whom,  435,  436. 

apparent  authority  of  agent  of  carrier  generally  sufficient,  437. 

facts  must  be  clear  showing  such  authority,  437. 

delivery  must  be  to  carrier  or  to  one  having  actual  or  appar- 
ent authority,  437. 

agents  of  carrier  authorized  to  receive,  438. 

several  kinds  mentioned,  438. 

constructive  delivery  of  goods,  439. 

custom  of  carrier  may  govern,  439. 

rules    permitting    constructive   delivery   must   be    applied 
with  great  caution,  440. 
Fixing  the  Liability  of  the  Caeriek   (Ch.  IV,  Part  V). 

the  object  of  the  chapter,  441. 

what  must  the  carrier  receive  and  carry,  442. 

limitation  of  general  rule,  442. 

line  or  kind  of  business  fixes  obligation  to  receive  and  carry, 
442. 

reasonable  rules  and  regulations,  may  make,  443. 

as  to  how  goods  shall  be  packed,  443. 

some  legal  excuses  for  refusing  to  receive  and  carry,  444. 

may  fix  time  and  place  for  receiving,  445. 

excuse  that  have  no  facilities  for  carrying  goods,  446. 

to  what  extent  must  furnish  facilities,  446. 

extraordinary  occasions,  press  of  business,  447. 

ordinary  requirements,  must  meet,  447. 

cannot  arbitrarily  refuse  to  receive  and  ship,  448. 

enforcing  the  receiving  of  goods  for  shipment,  equitable  pro- 
ceedings, 449. 

acceptance  by  the  carrier,  450. 

when  delivery  and  acceptance  complete,  451. 

bill  of  lading  receipt  not  requisite  to  bind  carrier,  452. 

action  for  refusal  to  accept  and  ship,  453. 

as  to  tender  of  goods  and  payment  of  freight  before  action,  454. 

who  may  bring  the  action,  455. 

liability  for  refusing  to  receive  and  ship,  456. 

duty  to  provide  proper  vehicles  for  the  shipment,  457. 

what  would  be  determined  proper  vehicle,  457. 
Fixing  the  Liability  of  Carriee — The  Blll  of  Lading    (Ch.   V, 
Part  V). 

the  bill  of  lading,  description  and  office  of,  458. 

negotiability  of  bill  of  lading,  459. 

consignor  may  consign  goods  to  himself,  460. 

bill  of  lading  with  draft  attached,  461. 

52 


818  INDEX. 

[References  are  to  sections.] 

CARRIERS    (continued)  — 

copy  of  bill  of  lading  and  draft,  461. 

bill  of  lading  as  proof,  462. 

bill  both  a  contract  and  a  receipt,  462. 

as  far  as  it  is  a  receipt  may  be  explained  and  modified,  462. 

where  shipper  obtains  bill  but  really  fraudulent  on  shipper's 

part,  no  goods  delivered,  462. 
such  bill  in  hands  of  innocent  consignee  who  has  paid  draft, 

is  carrier  liable,  462. 
authorities  not  harmonious,  463. 
some  courts  hold  carrier  estopped  from   denying  contents  of 

bill  of  lading,  463. 
that  carrier  liable  for  goods  stated  in  bill  of  lading,  463. 
weight,  condition,  contents,  value,  conclusiveness  of  bill  as  to, 

464. 
who  may  issue  bill  for  carrier,  465. 
Liability  and  Limitations  Upon  the  Liability  (Ch.  VI,  Part  V). 

liability  of  the  common  carrier,  466. 

is  at  common  law  that  of  an  insurer,  466. 

limitations  of  at  common  law,  466. 

reasons  for  extraordinary  liability,  467. 

inanimate  and  animate  freight,  468. 

extent  of  liability  affected  by  kind  of  freight,  468. 
Act  of  God,  When  Loss  ob  Injuby  Result  of,  469. 

definition  of  act  of  God,  55,  469. 

will  not  excuse  carrier  from  all  care,  470. 

duty  to  make  loss  as  small  as  possible,  470. 

ordinary  care  required  to  protect  goods  injured  by,  470. 

act  of  God  must  be  conclusive  and  proximate  cause,  471. 

act  of  God,  what  will  and  what  will  not  excuse — summary, 
472. 

act  of  God;  burden  of  proof,  473. 
Public  Enemy,  Defined,  474. 

diligence  required  of  carrier  in  such  case,  475. 

diligence  required,  even  though  property  injured,  476. 

strikers,  rioters  and  robbers  not  the  public  enemy,  477. 

will  not  relieve  carrier  from  liability,  477. 
Whebe  the  Liability  Aeises  from  Loss  or  Injury  the  Result  of 
the  Act  of  the  Shipper. 
reason  for  the  liability  of  the  carrier,  478. 
contributory  negligence,  applies,  479. 
improperly  marking  goods  by  consignor,  480. 
may  result  in  relieving  carrier  of  liability,  480. 
but  if  carrier  knew  of  the  error  will  not  relieve,  480. 
improperly  packing  or  loading  goods,  481. 
neglect  of  shipper  to  disclose  contents  or  value,  482. 
fraudulent,  not  to  disclose  in  some  cases,  482. 


INDEX.  819 

[References  are  to  sections.] 

CARRIERS    (continued)  — 

intermeddling  on  part  of  shipper,  483. 

negligence  of  the  carrier,  484. 
Where  the  Loss  oe  Injury  Caused  by  Inherent  Nature  of  Prop- 
erty. 

the  exception,  485. 

will  excuse  carrier,  when,  485. 

animate  freight,  486. 

introduces  new  element,  486. 
Carriers  of  Live-stock,  487-491. 

the  exception  applies,  487. 

rule  as  to  liability  modified,  487. 

carrier  relieved  when  injury  result  of  vitality  of  freight,  487. 

animals  may  destroy  themselves,  487. 

Michigan  rule,  not  common  carriers,  488. 

duty  of  carrier  of  live-stock,  489. 

facilities  for  shipping  live-stock  must  be  furnished,  489, 

feed  and  water,  489. 

running  of  train  and  duties  incident,  489. 

United  States  statute  as  to  duties  of  carrier,  490. 

shipper  must  deal  fairly  with  carrier,  491. 

injury  resulting  from  neglect  to  so  deal,  491. 
When  the  Loss  or  Injury   Result  of   Exercise  of  Public  Au- 
thority. 

reason  for  exception,  492. 
When  the  Damage  or  Injury  is  the  Resullt  of  Deviation  ob  De- 
lay  (Ch.  VII,  Part  V). 

implied  undertaking  of  carrier,  493. 

to  transport  within  reasonable  time,  493-496. 

to  transport  by  his  own  route,  493. 

bound  to  know  when  he  receives  goods  that  he  can  ship  them, 
493. 

cannot  receive  and  hold  in  warehouse,  493. 

if  press  of  business,  may  be  excused,  etc.,  493. 

notice  to  the  carrier,  494. 

if  carrier  has  notice  goods  are  to  fill  contract,  494. 

when  not  governed  by  rule  that  damage  too  remote,  494. 

if  property  understood  to  be  shipped  for  immediate  use,  494. 

unreasonable  delay,  what,  495. 

reasonable  diligence,  496. 

delay  occasioned  by  deviation  from  route,  497. 

if  deviation  unnecessary,  wrongdoer,  497. 

hut  if  necessary,  497. 

such  deviation  act  of  God,  public  enemy,  498. 

duty  often  to  deviate  from  course,  499. 

strikers,  deviation  for,  500. 

perishable  goods,  may  discriminate  for,  501. 

goods  after  disaster,  duty  of  carrier,  502. 


820  INDEX. 

[References  are  to  sections.] 

CARRIERS  (continued)  — 

CoNTBACT  Regulating:    the  Tkanspobtation  of  Goods    (Ch.  VIH, 
Part  V). 
object  of  the  chapter,  503. 
imposing  obligations  upon  carrier,  504. 

act  of  God  and  other  causes  not  excuse  for  not  fulfilling  con- 
tract, when,  504,  505. 
contract  by  certain  route,  must  so  carry,  505. 
if  loss  by  another  route,  carrier  liable  when,  505. 
contract  to  deliver  in  certain  time,  506. 
shipper  damaged  by  loss  of  market,  506. 
when  carrier  liable,  506. 
contract  to  carry  by  water  not  answered  by  carriage  by  land, 

507. 
when  carriage  is  fault  of  shipper,  508. 
Contract  Limiting  the  Liability  of  the  Carbieb,  509. 

(1)  special  or  express  contract,  509. 

(2)  contract  implied  from  notice,  509. 

cannot  limit  liability  when  result  of  negligence  of  carrier  or 
servants,  510. 

rule  in  different  states  as  to  limiting  liability,  51L 

limiting  as  to  amount,  512. 

consideration  of  contract  for  limiting  liability,  513. 

option  of  shipper  to  accept  contract  limiting,  514. 

shipper  may   insist  that  carrier's  liability  be  that  of  an   in 
surer,  514. 

contract  must  be  reasonable,  fair,  without  fraud,  515. 

contract  limiting,  how  made,  516. 

limiting  time  for  presenting  claims,  517. 

contract  limiting  liability  need  not  be  in  writing,  518. 

construction  of  contract  limiting  liability,  519. 

(2)   contract  implied  from  notice,  520. 

limiting  by  general  notice,  520,  521. 

notice  written  or  printed  on  bills  of  lading,  522. 

effect  of  such  notice,  522. 

representations  of  the  shipper,  523. 

when  limitation  of  contract  inures  to  connecting  carrier,  524. 

English  rule,  limitation  by  notice,  525. 

act  of  parliament  regulating  as  to  notice,  etc.,  525. 

the  result  of  the  act,  52G. 
Liability  of  the  Common  Careieb  (Continuicd) — Connecting  Car- 
bieb (Ch.  IX,  Part  V). 

carrier  liable  only  over  own  line  except  contract  otherwise,  527. 

if  no  contract  for  liability  beyond  own  line,  528. 

English  rule,  529. 

if  goods  directed  beyond  line,  contract  implied,  529. 

decisions  of  states  not  harmonious,  530. 


INDEX.  821 

[References  are  to  sections.] 

CARRIERS   (continued)  — 

some  states  holding  English  rule,  530. 

conditions,  etc.,  through  shipment  implied,  531. 
Connecting  Caeeters,  Who  Are,  532. 

relation  between  shipper,  initial  and  connecting  carriers,  533. 

duty  of  connecting  carrier,  534. 

authority  to  bind  connecting  carrier,  535. 

action  for  loss  or  damage,  536. 

against  which  carrier  shall  it  be  brought,  536. 
Compensation — Discrimination — Lien    (Ch.  X,  Part  V). 

compensation  of  carrier,  537. 

amount  depends  upon  goods  delivered,  538. 

if  prevented  from  delivery  by  act  of  God,  538. 

goods  lost  by  act  of  God,  loss  of  goods  to  owner,  of  freight  to 
carrier,  538. 

carrier's  special  security  in  and  right  to  possession  of,  539. 

carrier  may  protect  his  possession,  540. 

carrier  may  insure  the  goods,  541. 

When  can  sell  the  goods,  542. 

when  goods  perishable  and  cannot  carry  through,  542. 

in  case  of  disaster,  542. 

amount  of  compensation  can  charge,  543. 

discrimination  in  charges,  543. 

right  to  collect  advances  made  to  connecting  carriers,  544. 

on  theory  that  carrier  delivering  is  agent  of  owner,  544. 

who  is  liable  to  carrier  for  freight,  545. 

when  only  carried  part  of  the  distance,  546. 

when  carrier  may  re-ship  by  another  carrier,  546. 

but  if  owner  desires  to  take  possession  at  place  of  disaster,  546. 

pro  rata  itineris,  546. 

when  goods  shipped  against  the  will  of  the  owner  by  one  not 
having  the  right  to  ship,  547, 
Discrimination. 

law  forbidding,  applies  to  all  branches,  548. 

relates  to  facilities  for  shipping,  549. 

discrimination  that  is  forbidden,  550 

regulation  by  statute  of  state,  551. 

interstate  commerce  act,  552. 

U.  S.  statute  relative  to,  552,  note. 
The  Lien  of  the  Caeeiee. 

similar  to  the  lien  of  bailee,  553. 

when  does  the  lien  attach,  554. 

when  shipment  made  by  one  without  authority,  547,  555. 

carrier  not  entitled  to  compensation  and  lien,  555. 

for  what  charges  lien  attaches,  556. 

contract  for  shipment  must  be  fulfilled,  557. 

how  lost,  satisfied  or  discharged,  558. 

lien  satisfied,  559. 

lien  discharged,   560. 


822  INDEX. 

[References  are  to  sections.] 

CARRIERS  (continued)  — 

Tebmination    of    Caerier's    Liability — Liability    as    Warehouse- 
man, How  Discharged  (Ch.  XI,  Part  V). 

delivery  of  goods  to  assignee,  561. 

bill  of  lading,  562. 
■   may  demand  bill  of  lading  before  delivery  of  goods,  562. 

rules  as  to  delivery  applicable  to  all  carriers,  563. 

requirements  of  carrier  on  arrival  of  goods,  564. 
Express  Companies. 

requirements  as  to  delivery,  565. 

personal  delivery,  when,  565. 

express  company,  warehouseman  when,  566. 

liability  as  warehouseman,  5G7. 

duty  of  when  goods  refused  by  consignee,  568. 

should  notify  consignee  of  refusal,  568. 

goods  sent  C.  O.  D.,  569. 

when  consignee  refuses  to  receive,  570. 

right  of  consignee  to  inspect  goods,  571. 

carrier  may  assist  in  preventing  fraud  of  consignor,  572. 
Carriers  by  Water. 

as  to  delivery  of  goods  shipped,  573. 

if  consignee  refuses  to  receive,  573. 

termination  of  liability,  573. 

carrier  must  be  diligent  in  giving  notice  to  consignee,  574. 

must  provide  suitable  place  for  landing  and  caring  for  goods, 
575. 

actual  notice  of  arrival  of  goods  must  be  given,  576. 

notice  must  be  to  receive  goods  at  proper  time,  576. 

contract,  usage,  course  of  dealing,  577,  578. 

consignee    cannot    prolong    liability    by    inattention   to    notice, 
579. 

must  attend  to  notice  in  reasonable  time,  579. 
Carriers  by  Railroad. 

bound  to  deliver  freight  to  consignee,  580. 

not  excused  for  misdelivery,  580. 

termination  of  liability,  580. 

must  deliver  to  consignee  or  person  entitled  to  receive,  580. 

liability  for  misdelivery,  580. 

three  distinct  views  as  to  delivery  of  goods  and  termination  of 
liability,  581. 

(1)  The  so-called  Massachusetts  rule,  581,  582. 

(2)  The  New  Hampshire  rule,  583. 

(3)  The  rule  requiring  notice  to  consignee,  584. 
what  will  excuse  delivery,  585. 

the  causes  that  excuse  liability,  585. 
Stoppage  in  Transitu,  586. 

law  favors  right  of  stoppage  in  transitu,  587. 
some  requisites  to  exercising  rights,  588. 
how  exercised,  notice,  to  whom,  589. 


INDEX. 


[References  are  to  sections.] 


823 


CARRIERS   (continued)  — 

how  can  the  right  be  defeated,  590. 
lien  of  the  carrier  for  freight  has  priority,  591. 
duty  of  carrier  when  notice  of  stoppage  in  transitu,  592. 
when  carrier's  control  and  liability  terminates,  592. 
Carriers  of  Passengers  (Ch.  I,  Part  VI). 
the  relation,  593. 
who  are  passengers,  594. 
definition,  594. 

status  'fixed  by  intention,  595. 

not  essential  that  persons  should  be  in  carrier's  vehicle,  596. 
passenger  while  at  station,  596. 
when  entering  vehicle,  596. 

persons  waiting  in  stations  for  arrival  of  passenger,  596. 
express  messengers  and  mail  agents,  597. 
mail  agents  are  passengers,  598. 
drovers  when  passengers,  599. 
workmen  and  employees,  600. 

requisite  that  carrier  must  receive  person  as  a  passenger,  601. 
reasonable  regulations,  persons  violating,  602. 
violation  of  regulations  as  to  boarding  trains,  etc.,  602. 
when  violation  of  regulation  excuses  liability,  602. 
payment  of  fare  not  a  requisite  to  become  a  passenger,  603. 
fraud  on  carrier  as  to  fare  may  defeat  right  as  passenger,  604. 
termination  of  relation,  605. 
passenger  on  street-car,  606. 
when  becomes  a  passenger,  street-car,  606. 
when  ceases  to  be  a  passenger,  street-car,  606. 
when  leaves  car  ceases  to  be  a  passenger,  606. 
reasonable  regulations,  street-car,  607. 
passenger  must  occupy  usual  place  provided,  608. 
when  car  overcrowded,  608. 
Who  Must  the  Carrier  Accept  and  Carry — Certain   Duties  of 
Carriers  and  Passengers  (Ch.  II,  Part  VI). 
carriers  quasi-public  servants,  609. 

carrier  bound  to  receive  and  carry  all  who  apply,  609. 
exceptions  to  the  general  rule,  610. 
carrier  must  protect  passengers,  611. 
right  to  separate  passengers  as  to  sex,  612. 
separation  of  races  as  a  reasonable  regulation,  613. 
constitutional  amendment,  613. 
interstate  commerce  commission,  613,  note, 
civil  rights  cases,  613. 

certain  duties  incumbent  on  carrier,  implied  obligation,  614. 
duty  as  to  vehicle,  machinery,  roadway,  track,  etc.,  615. 
as  to  stational  facilities,  616. 
as  to  running  and  managing  trains,  617. 


824  INDEX. 

[References  are  to  sections.] 

CARRIERS   (continued)  — 

passenger's  duty,  G18. 

must  not  negligently  contribute  to  cause  of  injury,  618. 
must  not  occupy  dangerous  and  unusual  places  on  vehicle,  618. 
Passenger  Carrier's  Liability    (Ch.  Ill,  Part  VI). 
the  purpose  of  the  chapter,  G19. 
general  principles  governing  the  liability,  619. 

the  basis  of  the  liability,  620. 

failure  of  carrier  to  do  his  duty,  basis,  620 

contributory  negligence  a  defense,  620. 

carrier's  liability  for  injuries  of  servants  resulting  from 
negligence  of  fellow-servant,  623. 

material  facts  in  fixing  liability,  623. 

the  rule  stated,  its  origin,  624. 
when  master's  negligence  contributes  to  the  injury,  625. 

as  furnishing  defective  machinery,  625. 

result  of  negligence  of  incompetent  fellow-servant,  626. 

master  must  exercise  ordinary  diligence  in  employment  of 
competent  fellow-servant,  626. 

must  furnish  proper  place,  etc.,  626. 

diligence  of  master  commensurate  with   service  required, 
626. 

superior  servant  rule  as  contradistinguished  from  alter  ego 
or  vice-principal  doctrine,  627. 

some  courts  hold  that  superior  court  may  bind  principal,  627. 

cases  quoted  clearly  stating  rule,  627. 

act  of  congress  to  regulate  liability,  628. 

has  the  power  to  do  this  been  delegated,  628. 

some  courts  hold  act  unconstitutional,  628. 
passenger  elevators,  629. 

passenger  carriers  must  adopt  approved  machinery,   630. 

latent  defects  in,  liability  affected  by,  how,  631 

English  rules  as  to,  632. 

defects  discoverable  by  manufacturers,  633. 
Liability   Growing   Out   of    Duty   to   Passengers   Whii,e   in 
Transit. 

the  degree  of  care  required,  634. 

depots,  waiting-rooms,  approaches  and  exits  from  premises 
and  vehicles,  635. 

must  be  reasonably  safe,  635. 

overloading  and  overcrowding  vehicles,  637. 

abuse  of  passengers,  liability  of  carrier  for,  638. 

fares,  tickets,  contract  for  carriage,  639. 

conditions  printed  on  the  ticket,  639. 

consideration  for  such  agreement,  G39. 

excursion  tickets,  conditions  in,  etc.,  639.' 

acceptance  of  such  ticket,  accepts  conditions,  639. 


INDEX.  '  825 

[References  are  to  sections.] 

CARRIERS   (continued)  — 

when  passenger  violates  conditions,  639. 

when  the  carrier  or  agent  is  at  fault,  640. 

when  passengers'  violation  of  the  contract  attributable  to 

carrier,  640. 
as  where  return  ticket  to  be  signed  in  presence  of  agent 

passenger  is  given  no  opportunity,  640. 
authorities  not  entirely  harmonious  as  to   right  to  eject 

pasenger  for  not  holding  return  coupon  when  deprived 

of  it  by  conductor,  etc.,  640. 
passenger  must   exercise   ordinary    diligence    in   avoiding 

mistake,  640. 
by   weight  of   authority   conductor   may   rely   on   face   of 

ticket  rather  than  word  of  passenger,  640. 
passenger  must  submit  to  pay  or  be  ejected  and  sue  for 

damages,  640. 
exhibition  or  surrender  of  ticket,  641. 
when  ticket  is  lost  or  mislaid,  642. 
reasonable  time  to  find  ticket,  642. 
stop-over  ticket,  time  limit,  train  limit,  643. 
continuous  journey,  the  presumption,  643. 
tickets  over  connecting  lines,  644. 
When    delayed    by    negligence    of    carrier    selling    wrong 

ticket,  taking  wrong  coupon,  etc.,  G44. 
may  stop  over  at  termination  of  each  line,  when,  644. 
time  within  which  must  use  the  ticket,  644. 
passenger  delayed  by  wreck  or  fault  of  carrier,  645 
tickets,  passes,  etc.,  fraudulently  obtained  or  used,  646. 
Sleeping-car  Companies,  647. 

as  to  becoming  liable  for  carriage  of  passengers,  647. 
not  liable  as  common  carriers,  647. 
their  liability,  what  is  it,  647. 
not  liable  as  innkeeper,  647-G48. 
baggage,  liability  for,  648. 
Ejection  of  Passengers  and  Intruders  From  Vehicle  of  Cabeieb, 

THE  Right  of,  the  Manner  of,  by  Whom,  649. 
numerous  causes  for,  650. 
can  only  be  expelled  for  misconduct,  650. 
refusal  to  produce  ticket,  G50. 

drunkenness,  disorderly  conduct,  offenses,  crimes  and  mis- 
demeanors, 650. 
father  refusing  to  pay  for  child,  may  eject  both,  650. 
as  to  passengers  relying  upon  statements  of  servants,  651. 
tendering  fare  will  avoid  ejection,  652. 
when  tender  of  fare  will  not  avoid,  652. 
the  manner  of  ejecting  the  passenger,  653. 
no  more  force  than  necessary,  653. 
must  take  into  account  condition  of  passenger,  654. 


826  INDEX. 

[References  are  to  sections.] 

CARRIERS  (continued)  — 

When  Cabkier  Excused  from  Liability. 

the  act  of  God,  the  public  enemy,  654-656, 
contributory  negligence,  657. 
strangers,  trespassers,  intruders,  658. 
carrier  must  exercise  certain  care  for,  658. 
failure  to  warn  passenger  of  danger,  659. 
when  question  of  fact  for  jury  or  law  for  court,  660. 
whether  question  of  law  or  fact,  661,  662. 
passenger  sometimes  excused  for  negligence,  663. 
law  regards  trying  situation,  663. 
carrier's  failure  to  carry  within  stipulated  time,  664. 
Limitations  of  Liability  (Ch.  IV,  Part  VI). 

three  classes  of  holdings  as  to  right  to  limit,  665. 

(1)  cannot  where  injury  result  of  negligence  of  carrier  or 

servants,  666. 

(2)  can   limit   even   though   injury    result   of   such   negli- 

gence, 667. 

(3)  can  limit  for  negligence,  but  not  for  gross  negligence, 

668. 
weight  of  authority  as  to  right  to  limit  liability,  669. 
free  passes,  limiting  liability,  670. 
if  pass  issued  for  a  consideration,  670. 
where  pass  is  gratuitous,  670. 
where  limitation  signed  by  recipient  of,  670. 

limitation  growing  out  of  that  which   is  incident  to  the 
carriage,  671. 
one  riding  on  freight  train  certain  risk,  671. 

see  Baggage,  oe  the  Passenger's  Effects,  Ch.  V,  Part  IV. 
CHATTEL  MORTGAGE— 
priority  over  lien,  163. 

mortgage  a  public  record  when  recorded,  163. 
pledge  distinguished  from,  273. 
CLASSIFICATION   OF  BAILMENTS,  26. 
Roman  classification,  26. 
chart  showing  classification,  30. 

chart  classifying  and  showing  duties  and  liabilities,  35. 
COLLATERAL  SECURITY  (see  Pledge  or  Pawn— 
COLLECT   ON  DELIVERY,   569-572    (see  Goods   Sent  C.   0.   D.,   569; 

Carriers  of  Goods). 
COMMODATUM,  26,  28   (see  Bailments,  Ordinary). 
COMMON-LAW  FORECLOSURE  OF  PLEDGE,  301-302. 

where  stocks  are  held  on  margins,  322. 
COMPENSATION— 

bailee's  right  to,  64. 

bailee's  lien  for,  64-67. 

delivery  to  bailee  necessary  to  establish  lien,  68. 


INDEX.  827 

[References  are  to  sections.] 

COMPENSATION  (continued)  — 

possession  of  property  essential  to,  69. 

finder  of  property  may  have,  70. 

extinction  of  lien,  71. 

how  waived,  72. 

when  possession  claimed  for  reason  inconsistent  with,  72. 

by  parting  with  possession  of  property,  72. 

cannot  be  revived  if  lost,  73. 

enforcement  of  bailee's  lien,  75. 

enforcement  and  foreclosure,  75. 

bailor's  right  to,  74. 

in  locatio  bailments,  159. 

if  thing  destroyed  while  performing  agreement  or  after  finished; 

bailor's  loss,  bailee  would  have  compensation,  139. 
bailee  must  exercise  ordinary  diligence  and  if  he  fails  to  do  so 

and  loss  occurs  liable,  140. 
if  work  is  by  job  and  loss  occurs  bailor  would  lose  material,  bailee 

labor,  141. 
bailee  must  do  work  as  contracted  to  obtain  right  to  compensation, 

142,  143. 
not  every  failure  to  perform  contract  obligation  will  deprive  bailee 

of  compensation,  144. 
lien  enlarged  in  later  years,  159. 
priority  of  lien,  160. 

agister  and  livery  stable  men  no  lien  at  common  law,  161. 
lien  by  statute,  162. 

chattel  mortgage  takes  precedence  over,  163. 
quantum  meruit,  144. 
if  failure  fault  of  bailor,  145. 
if  workman  prevented  by  inevitable  accident  or  irresistible  force, 

and  not  in  fault  may  have  compensation  to  extent  of  reasonable 

worth,  146. 
for  reclaiming  property  lost  by  reason  of  inevitable  accident,  etc., 

without  his  fault,  147. 
compensation  and  lien  of  innkeeper,  375,  384. 
compensation  and  lien  of  carrier,  537,  553-560. 
similar  to  the  lien  of  the  bailee,  553. 
when  does  the  lien  attach,  554. 

when  shipment  made  by  one  without  authority,  555. 
for  what  charges  will  the  lien  attach,  556. 
the  contract  for  shipment  must  be  fulfilled,  557. 
lien  how  lost,  satisfied  or  discharged,  558. 
lien  satisfied,  559. 
the  lien  discharged,  560. 

see  Passengeb  Carriers,  603;  Ejecting  Passenger,  644;  Ten- 
dering Pare  to  Avoid  Ejection,  646;  Baggage,  Pay  fob  Ex- 
cess, 675. 


828  INDEX. 

[References  are  to  sections.] 

COMPENSATION   (continued)  — 

fare  paid,  consideration  for  carriage  of  baggage,  681. 
lien  of  innkeeper  lost  or  waived,  385. 
lien  lost,  385. 

lien  of  warehousemen  and  custodies  bailees,  212. 
lien  of  agisters,  161,  162. 

when  chattel  mortgage  takes  precedence  over  lien,  163. 
see  Bailments,  Okdinaby;    Innkeepers;    Carriers. 

CONNECTING   CARRIERS— 527-536;    643-645. 
of  goods,  527-536. 
when   contract   limiting   liability   inures   to   benefit  of   connecting 

carrier,  524. 
carrier  liable  only  over  own  line  except  when  contract  further,  527. 
if  no  contract  beyond  its  own  line,  528. 
freight  marked  through  not  enough,  528. 
if   liability   expected   beyond   its   own   line   shipper   should   make 

special  agreement,  528. 
different  rule  in  England,  528. 
the  English  rule,  529. 
state  courts  not  harmonious,  530. 

same  conditions  where  contract  for  through  shipment  implied,  531. 
who  are  connecting  carriers,  532. 

the  relation  between  the  initial  and  connecting  carrier,  533, 
when  connecting  carrier  but  agent  of  initial  carrier,  533. 
when  initial  carrier  but  agent  of  shipper,  533. 
the  duty  of  the  connecting  carrier,  534. 
is  bound  to  receive  goods  of  all  who  apply,  534. 
bound  to  receive  and  ship  when  oifered  by  initial  carrier,  534. 
bound  to  receive  and  carry  goods  over  his  line  and  deliver  to  next 

connecting  carrier,  534. 
liable  for  delay,  534. 
if  succeeding  or  connecting  carrier  refuses  to   receive  the  goods 

must  report  at  once  to  shipper,  534. 
authority  to  make  contract  binding  connecting  carrier,  535. 
agent  of  initial  carrier  has  such  authority,  when,  535. 
agents  of  initial  carriers  have  at  least  apparent  authority,  535. 
actions  for  loss  of  goods,  536. 
against  what  carrier  should  commence,  536. 
different  holdings,  536. 
of  passengers,  644-646. 
tickets  to  passengers,  over  connecting  lines  how  generally  issued, 

644. 
initial    carrier    as    agent   of    connecting    carrier    on    sale    of    such 

tickets,  644. 
liability  of  initial  carrier  to  passenger  in  such  cases,  644. 
authorities  not  all  agreed,  C44. 


INDEX.  829 

[References  are  to  sections.] 

CONNECTING  CARRIERS    (continued)  — 

some  courts  have  held  initial  carrier  liable  for  loss  or  injury  occa- 
sioned by  negligence  of  connecting  carrier,  644. 
where  initial  carrier  delivers  to  passenger  the  wrong  ticket,  644. 
or  removes  the  wrong  coupon,  644. 
holder  of  such  ticket  may  stop  at  intersections  of  route  within  the 

life  of  the  ticket,  644. 
delayed  by  wreck  or  fault  of  carrier,  645, 
tickets  fraudlentily  obtained,  result  of,  646. 
CONTRACT  (see  Bailment,  Ordinaey,  33,  44). 

bailee  cannot  contract  against  his  own  fraud  or  gross  negligence, 

59. 
bailment  a  contract  relation,  92. 
pledge  and  pawn,  215,  219. 
innkeeper's  limitation  of  liability,  372. 
carriers,  increasing  and  diminishing  liability  by  contract,  400-402, 

509,  512. 
consideration  of  contract  for  limiting,  513. 
must  be  reasonable  and  fair,  without  fraud,  515. 
contract  limiting,  how  made,  516. 
for  limiting  time  for  presenting  claims,  517. 
contract  limiting  need  not  be  in  writing,  518. 
construction  of  contract  limiting,  519. 
contract  implied  from  notice,  520.     , 
as  to  limiting  by  general  notice,  520,  521. 
notice  written  or  printed  on  bills  of  lading,  522. 
when  contract  limiting  inures  to  benefit  of  connecting  carrier,  524. 
no  contract  for  liability  beyond  own  line,  528. 
English  rule,  529. 

decisions  of  states  not  harmonious,  530. 
conditions,  etc.,  for  through  shipment  implied,  531. 
contract  for  shipment  must  be  fulfilled,  557. 

carriers  by  water,  contract  as  to  delivering  goods,  usage,  course 
of  dealing,  577,  578. 
see  Passenger  Caeriees;   Conteact  Limiting  Liability;   Pas- 
SENGEB  Riding  on  Pass,  670. 
as  to  time  agreed  to  complete  journey,  664. 
limitations  of  liability,  665-670. 
limitation  of  liability  to  those  riding  on  pass,  670. 
baggage,  implied  contract  to  carry,  GSl. 
if  free  pass,  no  consideration,  686. 

see  Cabbiers  of  Goods;    Innkeepebs. 
CONTRACTS    REGULATING    THE    TRANSPORTATION    OF    GOODS 

(Ch.  VIII,  Part  V),  503,  526.     See  Cabeiees  of  Goods. 
CONTRIBUTORY     NEGLIGENCE.     See     Negligence     ob     Diligence; 
Pledge  oe  Pawn;   Innkeepers;   Careiees  of  (oOODs;   Cabeiees  of 
Passengees;    Cabeiees  of  Baggage;   Actions;    Negligence;    Con- 
teibution. 


830  INDEX. 

[References  are  to  sections.] 

CONVERSION,  63. 

what  amounts  to,  63. 

bailor  may  bring  action  for,  on  failure  of  bailee  to  redeliver,  63. 

when  bailee's  misuse  of  thing  amounts  to  conversion,  122. 

what  amounts  to,  not  mere  misuse,  125. 

what  constitutes,  125. 

assertion  of  dominion,  etc.,  126. 

assuming  to  pledge  or  sell  property,  126. 

as  driving  horse  beyond  place  hired  for,  126. 

see  Bailments,   Ordinaby;    Locatio   Operis;    Warehousemen; 
Storage-house  Keepers;   Safety  and  Deposit  Vaults. 
CORPORATIONS— 

may  become  bailor  or  bailee,  16. 

act  through  agents,  16. 

but  if  the  act  of  the  agent  is  ultra  vires,  16. 

property  received  though  agent's  act  is  unauthorized,  16. 
see  Bailments,  Ordinary;  Pledge  or  Pawn. 
CRIMINAL— 

liability  of  bailee,  210. 

embezzlement,  210. 
CUSTODY  BAILMENTS.     See  Bailments,  Ordinary;  Locatto  Custodl^ 
Bailments;    Warehousemen;    Storage-house  Keepers    (Ch.   XI, 
Part  I,  sees.  164-206). 
CUSTOM  (see  Bailment;  Pledge  and  Pawn)  — 

custom  and  usage,  etc.,  stock  brokers,  321. 

foreclosure  of  stocks  on  margins,  322.     See  Contracts. 
DAMAGES.     See  Actions. 
DEATH.    See  Termination  of  Bailment  by,  82. 

Definition,  and  Criticisms  of  Definitions  of  Bailments,  3. 

derived  from  bailor,  3. 
DELIVERY   (see  Bailments,  18,  19,  68;   Pledge  and  Pawn,  237a,  238, 
240,  247,  254,  262,  263,  265-267,  270,  271,  328;  Innkeepers,  360- 
362;   Carriers  of  Goodss,  430-440)  — 

delivery  of  goods,  constructive,  19,  439. 

custom  of  carrier  as  to,  governs,  439. 

rules  permitting  constructive,  applied  with  caution,  440. 

delivery  of  goods  to  consignee,  561. 

carrier  may  demand  bill  of  lading  before  such  delivery,  562. 

rules  as  to  delivery  applicable  to  all  carriers,  563. 

required  by  carrier  on  arrival  of  goods,  564-565. 

express  companies,  requirements  as  to  delivery,  565. 

C.  O.  D.  goods,  569. 

carrier  by  water,  573,  579. 

carrier  by  railroad,  must  deliver  to  consignee,  580. 

liability  for  misdelivery,  580,  585. 

requirements  as  to  delivery,  581,  585. 

baggage,  687-689,  692. 

steamship  companies,  baggage,  692,  G93. 


INDEX.  831 

[References  are  to  sections.] 

DEPOSITS— 

depositum,  86. 

use  of  deposit,  87. 

special,  not  general,  88. 

guasi-deposits,  89. 

distinction  between  depositum  and  mandatum,  91. 

safe-deposit  and  trust  companies,  194-196. 

nature  of  and  diligence  required,  196. 

general  deposits  in  banks,  50,  88. 

as  to  diligence  required,  50,  93. 
DEPOSITARY,  86,  87,  93,  98. 

DEPOTS.     See  Passenger  Carriers,  616,  635,  636. 
DEVIATION  AND  DELAY  (Ch.  VII,  Part  V).     See  Caebiees  OF  Goods, 

493,   502. 
DILIGENCE— 

bailments,  degree  of,  34,  35. 

what  is  diligence,  36. 

definition  generally  accepted,  37 

each  case  ruled  by  its  own  circimistances,  38. 

high  diligence,  gross  negligence,  39. 

negligence  and  fraud  distinguished,  40. 

when  diligence  and  negligence  questions  of  law,  41. 

classification  of  conditions  and  circumtances,  42. 

in  bailments  for  sole  benefit  of  bailor,  93,  94. 

for  sole  benefit  of  bailee,  101,  102. 

in  mutual  bailments,  128,  140. 

locatio  rei  bailments,  128. 

locatio  operis  bailments,  150,  152,  153. 

what  is  ordinary,  for  skilled  workmen,  154,  155. 

locatio  custodier  bailments,  diligence  required,  198-200. 

diligence  must  keep  pace  with  improvements,  201 

proof  of,  202. 

does  the  burden  of  proof  shift,  203,  204. 

pledge  and  pawn,  diligence,  275,  292,  316. 

innkeepers,  351,  352,  354. 

postal  service,  390. 

carriers,  private  carriers,  399. 

private  carriers,  gratuitous,  405. 

public  or  common  carriers,  466,  475,  476. 

carriers  of  passengers,  614,  617,  620. 

diligence  in  employing  competent  servants,  621. 

as  to  safe  and  sufficient  means  of  transportation,  622. 
DISORDERLY  PERSONS.     See  Innkeepers,  343,  344,  348;  Caebiees  of 

Passengers,  650,  653,  654. 
DISCRIMINATION.     See  Innkeepers,  343;  Carbtebs  of  Goods,  442,  443, 

548-552;  Carriers  of  Passengers,  609-613. 
DROVERS— 

riding  on  pass,  599. 


832  INDEX. 

[References  are  to  sections,] 

DROVERS   (continued)  — 

contract  with  cari'ier  limiting  liability,  effect  of,  665-669. 
a  consideration  for  pass  to  carrier,  670. 
see  Caebiees  of  Passengers,  599. 
DRUNKENNESS— 

innkeepers,  444,  348. 

carriers  of  passengers  may  eject  for,  650. 
duty  of  carrier  toward,  653,  654. 
EJECTION— 

passenger  carriers,  the  right,  the  cause,  the  manner,  by  whom,  649. 
numerous  causes,  650. 

misconduct,  refusal  to  pay  fare,  produce  ticket,  drunkenness,  dis- 
orderly conduct,   committing  offenses,   crimes  or  misdemeanors 
on  other  passengers,  gamblers,  persons  affected  with  disease,  re- 
fusing to  comply  with  reasonable  rules  and  regulations,  650. 
passenger's  reliance  upon  servants  and  agents,  651. 
tendering  fare  to  avoid  ejection,  652. 
when  carrier  may  refuse  pay  or  tender  of  fare,  652. 
the  manner  of  ejecting,  653. 
no  more  force  than  necessary,  653. 

condition  of  the  passenger  must  be  taken  into  account,  654. 
when  parents  must  pay  fare  of  child  or  be  ejected,  650. 
EQUITY— 

foreclosure  of  pledge  in,  310,  311. 

proceedings  in,  to  enforce  the  receiving  and  shipping  of  freight, 

449. 
will  enforce  transfer  of  stock  on  books,  when,  249,  326. 
when  stock  entered   in  books  of  company  as  pledgee's  property, 

equity  will  undo,  326. 
when  pledgee  refuses  to   reconvey  stocks  so  entered,  equity  will 
decree  it,  326. 
EVIDENCE.     See  Actions. 
EXPENSES— 

bailments,  ordinary;    extraordinary   expense,   when   can   pay,   109, 

130. 
ordinary  expense,  bailee  must  pay,  109. 
extraordinary,  may  collect  of  bailor,  109. 

pledge  and  pawn,  pledgee  must  pay  usual   and  necessary  expen- 
ses, 291. 
extraordinary,  pledgor  must  pay,  291. 
pledgee  may  make  usual  and  necessary  repairs,  291. 
is  bound  to  keep  property  in  ordinary  repair,  291. 
not  to  make  changes  or  extraordinary  repairs,  291. 
EXPRESS  COMPANIES— 
are  common  carriers,  421. 
expected  to  deliver  consignments  to  consignee  in  person  or  at  rest- 

dence  or  place  of  business,  421,  565. 
requirements  as  to  delivery,  565. 


INDEX.  833 

[References  are  to  sections.] 

EXPRESS  COMPANIES    (continued)  — 

until   delivered,   unless  reasonable  excuse,   liable  as  common  car- 
riers, 565. 
as  to  what  effort  company  must  make  to  deliver.  565. 
must  make  reasonable  effort  to  deliver,  565. 
when  becomes  warehouseman,  566. 

when  have  answered  all  reasonable  requirements  as  to  delivery,  566. 
when  liability  becomes  that  of  a  warehouseman,  567. 

(1)  when  goods  delivered  not  for  immediate  shipment,  567. 

(2)  when  cannot  for  good  reason  be  delivered  at  destination, 

567. 

duty  when  goods  refused  by  consignee,  568. 

should  at  once  notify  consignor,  568. 

goods  sent  C.  O.  D.,  569. 

as  to  payment  for  goods  so  delivered,  569. 

when  company  liable  for,  569. 

when  consignee  fails  to  receive  the  goods  or  refuses,  570. 

consignee's  right  to  inspect  goods  so  sent,  571. 

company  may  assist  to  prevent  fraud  of  consignor,  572. 

as  where  goods  sent  are  valueless,  company  may  allow  inspection,  572. 

when  collection  made  by  company  and  goods  found  of  no  value,  572. 
EXPRESS  COMPANY'S  RECEIPT,  482. 

shipper  bound  by  stated  value  in,  482. 
FACTORS— 

may  be  bailee's,  3,  5. 

belong  to  locatio  custodice  bailments,  193. 

factors  and  commission  merchants  must  exercise  good  faith  and 
ordinary  diligence,  193. 

cannot  substitute  other  goods  for  goods  delivered  to  him,  193. 

must  follow  implicitly  directions,  193. 

must  follow  the  general  usage  of  trade,  193. 
see  Storage-house  Keepers,  179,  185. 
TAST-FREIGHT  LINES,  DISPATCH  COMPANIES,  ETC.-^ 

are  common  carriers  of  goods,  422. 
FELLOW   SERVANTS,  CARRIER'S   LIABILITY   FOR  NEGLIGENCE 
OF,  623,  628. 

carrier's  liability  for  injuries  to  servants  resulting  from  negligence 
of  fellow  servants,  623. 

the  rule  stated,  its  origin,  624. 

when  the  master's  negligence  contributes  to  the  injury,  625. 

as  where  defective  machinery  furnished,  625. 

risk  assumed  by  the  servant,  what,  625. 

when  injury  result  of  negligence  of  incompetent  servants,  626. 

superior  servant  rule  as  contradistinguished  from  the  alter  ego  or 
vice-principal  rule,  627. 

act  of  congress  to  regulate  liability,  628. 

the  constitutionality  of  the  act,  628. 
see  Servant,  Negligence  of,  206. 


834  INDEX. 

[References  are  to  sections.] 

FERRIES.     See  Commox  Cakbiebs,  416. 
FINDER— 

may  be  bailor,  70,  104. 
when  may  have  lien  on  property  found,  70. 

for  mere  act  of  finding  and  returning,  no  recovery  for  compensa- 
tion, 70. 
right  of  compensation  based  on  implied  request  of  owner,  70. 
this   request   implied    undertaking   to    indemnify    finder   for   good 

faith  and  necessary  expenditures,  70. 
if  property  abandoned  or  derelict,  70. 
FORECLOSURE— 

after  default  pledgee  may  foreclose,  296. 
When  Pledge  of  Coeporeal  Pbopert/,  301. 
several  ways  of  foreclosure,  301. 

when  may  sell  under  power  in  contract  of  pledge,  302. 
power  implied,  302. 
common-law  foreclosure,  302. 
sale  must  be  public,  303. 
notice  of  sale,  304,  306. 
purchaser  at  sale,  305. 
pledgee  cannot  be  purchaser  at,  305. 
purchase  by  pledgee  not  per  se  void  but  voidable,  305. 
governed  by  fairness,  good  faith  and  acquiescence  of  pledgor,  305. 
utmost  good  faith  demanded  in  matter  of  notice  of  sale,  306. 
reasonable  time  and  proper  place,  306. 
pledgor  cannot  compel  pledgee  to  sell,  307. 
his  remedy  is  to  redeem,  307. 
as  to  surplus  after  sale,  308. 
statutory  foreclosure,  309. 
in  equity,  310,  311. 

when  the  pledgor  insolvent  or  a  bankrupt,  312. 
When  Propeety  Pledged  Negotlvble  Instruments,  313. 

not  usual  to  sell  at  public  auction,  313. 

English  rule,  314. 

pledgee  must  collect  securities,  315. 

pledgor's  diligence  in  collecting  the  securities  pledged,  316. 

pledgee  may  recover  in  an  action  on,  317. 

securities  liable  to  equities,  317. 

compromise,   318. 
When  Pledged  Pbopebty  Consists  of  Stocks  and  Bonds,  319. 

stocks  held  on  margins  by  corporations,  320. 

custom,  usage  and  course  of  business  in  such  cases,  321. 

as  to  foreclosure  of,  320,  322. 
pledgor's  rights  in  property  after  foeclosure,  323. 
pledgor  may  waive  irregularity,  324. 
pledgor's  equity  of  redemption,  325. 
equity  will  sometimes  take  jurisdiction,  326. 


INDEX.  835 

[References  are  to  sections.] 

FRAUD— 

bailments,  fraud  will  terminate,  79,  (i). 

carriers.     See  Bill  of  Lading,  462,  463. 
failure  to  disclose  value  of  goods,  482. 
contract  limiting  liability  of  carriers,  401,  515. 

carrier  of  passengers,  fraud  on  as  to  fare,  604. 
FREIGHT  TRAINS,  671. 

passenger  riding  on  assumes  certain  risks,  671. 

the  usual  jolting  and  sudden  jerking  and  slacking  of,  671, 
GENERAL  LIENS.     See  Liens. 
GIFTS— 

bailment  or  sale,  25. 
GRAIN— 

stored  in  elevator,  exception  to  rules  requiring,  redelivery,  7,  19. 

mixed  with  other  grain  not  evidence  of  sale,  23,  24  and  note. 
see  LocATio  Custodle  Bailments. 
GRATUITOUS  BAILMENTS,  32,  33   (see  Bailments  fob  Sole  Benefit 
or  Bailee,  100-111)  — 

death  of  bailee  terminates,  82. 

for  sole  benefit  of  bailor,  84-99. 
see  Index,  Bailments. 
GUESTS,  334-348  (see  Index,  Innkeepers;  Guests;  Baggage) — 

who  are,  334,  335. 

guest  or  boarder,  336,  337. 

personal  presence  of,  not  always  necessary,  338. 

leaving  a  horse  and  vehicle  or  carriage  may  be  enough,  338. 

taking  lodging  only,  may  make  one  a  guest,  339. 

accommodations  furnished  not  necessary  to,  339. 

mere  visitor  not,  340. 

length  of  stay  not  material,  341. 

purpose  for  which  used  often  determined,  342. 

must  use  inn  for  legitimate  purpose,  342. 

who  must  the  innkeper  receive,  343. 

generally  all  who  apply,  343. 

limitations  and  exceptions,  344. 

liability  for  refusing  to  receive,  345. 

when  may  turn  guest  away,  346,  348. 

disorderly  conduct  of,  348. 

liability  of  innkeeper,  349.  -. 

exceptions  and  limitations  of  liability,  349. 

liability  of  innkeeper  to,  exceptions  analyzed,  351. 

when  loss  of  property  of,  by  accidental  fire,  352. 

by  act  of  God  or  public  enemy,  353. 

by  irresistible  force  without  fault  of  innkeeper,  354. 

forcible  robbery,  riot,  etc.,  355. 

if  loss  occasioned  by  force  from  within,  356. 

by  reason  of  inherent  nature  of  property,  357. 

through  the  fault  of  the  guest  or  his  servants  or  companions,  358. 


836  INDEX. 

[References  are  to  sections.] 

GUESTS   (continued)  — 

for  what  property  liable,  360. 

must  be  guest,  and  property  within  the  inn,  361. 

when  the  goods  or  property  may  be  said  to  to  be  within  the  inn, 

362. 
loss  by  theft,  363. 

if  property  of  third  person,  or  principal,  365,  379. 
if  guest  agent  of  corporation  and  property  is  property  corporation 

principal,  366. 
when  property  goods  for  sale  or  show,  367 
limitations  of  liability  of  innkeeper  for  loss  of  property,  372. 

may  limit  by  contract,  but  not  for  gross  negligence,  372. 

requiring  guest  to  deposit  valuables,  372. 

reasonable  regulations  applicable  to,  372. 

must  compensate  innkeeper,  375. 

lien  upon  property  and  baggage  of,  375,  376. 

when  guest  an  infant,  compensation,  lien,  378. 

when  property  belongs  to  third  person,  379,  380. 

when  guest  an  agent,  servant  or  bailee  of  owner  of  property, 
381. 

animate  property,  382. 

where  guest  has  wrongfully  possessed  himself  of  property,  383, 

will  innkeeper  have  lien  on  such  property,  383. 

some  cases  have  held  would  have  lien,  383. 

better  reasoning  holds  cannot,  383. 
HACKMEN.     See  Omnibus. 
HACKMEN,  CARTMEN  AND  OWNERS  OF  WAGONS— 

are  common  carriers,  419. 
HIRE— 

bailments  for,  112,  113,  115-117. 
locatio  rei  bailments,  119-131. 
locatio  operis  bailments,  132-163. 
locatio  custodice  bailments,  164-206. 

see  Index,  Bailments. 
carriers  may  be  gratuitous,  397,  405. 
private  for  hire,  397-404. 
public  or  common  carriers,  406,  407,  411. 
compensation  of  carrier,  537,  560. 

see  Passengeie  Cabriebs;   Sleeping-car  Companies. 
HOTEL.     See  Innkeepebs. 
INFANTS— 

as  party  to  bailment,  12. 

disability  a  shield,  not  a  sword,  13. 

bailed  property  in  possession  of,  must  care  for,  13. 

liable  for  tortious  use  of,  13. 

the  theory  of  the  liability  of  an  infant  bailee,  14. 

theory  of  the  disability  of  an  infant  bailee,  14. 

not  on  contract  but  for  wrong,  14. 


INDEX.  837 

[References  are  to  sections.] 

INEVITABLE  ACCIDENT.     See  Accident,  Inevitable. 
INNKEEPERS   (Ch.  I,  Part  III)  — 
inns,  origin,  history  of,  329. 
innkeepers,  who  are,  330,  331 
essential  characteristics  of,  332. 
restaurants,  cafes,  are  not  inns,  333. 
sleeping-car  companies  not  innkeepers,  333. 
Guests,  Who  Abe,  334  (Ch.  II,  Part  III). 

distance  traveled  immaterial,  335. 

guest  or  boarder,  which,  336. 

length  of  time,  contract  for  rates,  does  not  determine,  337. 

personal  presence  of,  not  always  necessary,  338. 

leaving  of  horse  and  vehicle  or  baggage  may  be  enough,  338. 

furnishing  of  what  accommodations  necessary,  339. 

taking  lodgings  only  may  make  one  a  guest,  339. 

accommodations  furnished  not  necessary  to  render  one  a  guest, 
339. 

mere  visitor  not  a  guest,  340. 

length  of  time  one  remains  immaterial,  341. 

must  use  inn  for  legitimate  purposes,  342. 

if  practicing  illegal  pursuits,  not  a  guest,  342. 
Who  Must  Innkeepek  Receive  as  Guest,  343. 

all  who  apply  must  be  received,  general  rule,  343 

limitation  and  exceptions  to  this  rule,  344. 

may  refuse  to  receive  if  house  is  full,  344. 

disorderly  persons,  may  refuse  to  receive  them,  344. 

persons  with  contagious  diseases,  may  refuse  to  receive  them, 
344. 
Liability  foe  Refusing  to  Receive  Guest,  345. 

may  refuse  to  receive  and  entertain,  when,  346. 

when  guest  is  taken  ill  with  contagious  disease,  347. 

when  guest  is  disorderly,  348. 
Liability  of  the  (1)   Innkeeper,   (2)  of  the  Guest  (ch.  Ill,  Part 
III). 

liability  of  the  innkeeper,  349. 

several  instances  classified,  349. 

an  extreme  case,  Hulett  v.  Swift,  349. 

extraordinary  liability  because  of  public  policy,  350. 

liability  and  exceptions  analyzed,  351. 

where  loss  by  accidental  fire,  in  no  way  fault  of  innkeeper, 
352. 

where  loss  occasioned  by  act  of  God  or  public  enemies,  353. 

where  loss  occasioned  by  irresistible  force  without  fault  of  inn- 
keeper, 354. 

where  loss  occasioned  by  robbery,  riots,  etc.,  355. 

where  loss  from  force  from  within,  356. 

where  loss  by  reason  of  inherent  nature  of  property,  357. 

where  loss  because  of  fault  of  guest  or  companion,  358. 


838  INDEX. 

[References  are  to  sections.] 

INNKEEPERS  (continued)  — 

Reasonable  Regulations  of  Inn,  359. 

limitation  of  liability  by,  359. 
WHAT'  Property  Innkeeper  Llable  for,  360. 

owner  of  property  must  be  guest  and  property  within  inn,  361. 

property  within  the  inn,  362. 

when  property  held  to  be  within  the  inn,  362. 

not  necessary  guest  should  bring  property  himself  within  the 
inn,  362. 

when  servants  take  property  within  or  without  the  inn,  362. 

possession  of  servant,  possession  of  innkeeper,  362. 

as  loads  of  grain,  or  property  given  to  hostler,  362. 
Lost  by  Theft,  363. 

theff  by  servant,  363. 

theft   by   other   guest,    363. 

if  person  sustaining  loss  be  boarder  and  not  a  guest,  364. 

if  lost  property  the  property  of  third  person,  365. 

corporation's  property  lost  by  an  agent  a  guest,  366. 
Exceptions  to  Liability — Goods  for  Sale  or  Show,  367. 

liability  for  safety  and  protection  of  guest,  3C8. 

liability  for  personal  injury  to  guest,  368. 

defective  or  unsound  premises,  369. 

injuries  from  fire,  liability  for,  370. 

unsanitary  conditions,  unwholesome  food,  371. 
Limiting  Liability,  372. 

may  limit,  but  not  for  gross  negligence,  372. 

may  limit  by  reasonable  regulations,  372. 

as  requiring  guests  to  deposits  valuables,  372. 

by  notice  to  guest,  372. 

must  bring  notice  home  to  guest,  372. 

liable  as  ordinary  bailee,  when,  373. 

liable  as  gratuitous  bailee,  when,  374. 
Compensation  and  Lien  of  Innkeeper  (Ch.  IV,  Part  III)  — 

compensation  and  lien,  375. 

to  what  property  lien  attaches,  375. 

the  lien  a  common-law  lien,  376. 

compensation,  amount  of,  377. 

when  a  guest  an  infant,  compensation,  lien,  378. 

third  person's  property  in  possession  of  guest,  when  lien  at- 
taches, 379. 

subject  of  lien,  holdings  discussed,  380 

when  guest  agent,  servant  of  bailee  or  owner,  381. 

if  guest  in  course  of  business  of  principal  or  bailor,  lien  at- 
taches, 381. 
Animate  Property,  when  lien  attaches,  382. 

when  property  wrongfully  in  possession  of  guest,  383. 

when  property  is  stolen,  lien  cannot  attach  as  against  owner, 
383. 

lien  generally  fixed  by  statute,  384. 


INDEX.  839 

[References  are  to  sections.] 

INNKEEPERS  (continued)  — 

Lien  Lost  ob  Waived,  How,  385. 

by  tender  to  the  innkeeper  of  amount  due,  385. 
by  placing  the  refusal  to  deliver  on  different  grounds,  385. 
by  agreement  to  give  to  guest  credit,  385. 
by  delivery  of  goods  to  third  party,  385. 
by  wrongful  sale  or  pledge  of  property  by  innkeeper,  385. 
lien  once  lost  cannot  be  revived,  386. 
lien  is  not  extended  to  boarding-house  keeper,  387. 
INSURANCE. 

policy  of  subject  of  pledge,  266. 
delivery  a  requisite,  267. 
mere  promise  to  deliver  not  enough,  267. 
how  delivered,  268. 

by  assignment  of,  entered  on  books  of  company,  268. 
indorsement  in  blank  of  policy  and  delivery,  269. 
carrier  may  insure  the  goods,  541. 

if  lost  may  collect  the  amount  of  insurance,  541. 
all  over  the  amount  due  carrier  inures  to  owner,  541. 
warehouseman  may  insure  the  property,  177. 
generally  not  bound  to  insure,  177. 
but  ordinary  diligence  might  require  it,  177. 
INTERPRETATION     OF     BAILMENT     RELATION     IN     ENGLISH 
COURTS,  2. 
Lord  Holt's  analysis,  2,  note. 
INTERSTATE  COMMERCE  ACT,  552. 
LIEN   (Bailments)  — 

bailee's  right  to  compensation  and  lien,  lien  on  property  bailed,  64. 

agreement  necessary  to  create,  65. 

if  no  statute  or  express  contract,  common-law  lien,  66. 

two  kinds  of  liens,  67. 

(1)  particular  or  specific,  67. 

(2)  general  lien,  67. 

delivery  necessary  to  establishment,  68. 

possession  obtained  without  consent  of  owner  not  suflficient  to  sup- 
port, 68. 

not  necessary  that  delivery  be  actual,  68. 

possession  of  property  an  essential  to,  69. 

finder  of  property  may  have,  70. 

when  may  have  compensation  or  lien  (see  finder),  70. 

extinction  of  lien,  payment  or  tender  of  debt,  71. 

waiver  of  lien,  72. 

waived  by  placing  refusal  to  deliver  on  grounds  inconsistent  with, 
72. 

by  agreement  to  give  credit,  72. 

by  voluntary  parting  with  possession  of  property,  72. 

lien  cost  cannot  be  revived,  73. 

enforcement  of  lien  of  bailee,  75. 


840  INDEX. 

[References  are  to  sections.] 

LIEN  (Innkeeper's)— 375-386. 
compensation  and  lien,  375. 
on  animals  and  property  of  guest,  375. 
not  only  for  guest's  keep  but  for  keeping  of  animals  or  property, 

375. 
lien  attaches  to  exempt  property,  375. 
property  of  infant  guest  liable.  375. 
property  of  married  women  liable  to.  375. 
the  English  rule,  375. 
the  lien  a  common-law  lien,  376. 
compensation  to  secure  which  lien  attaches,  377. 
infant's  property  subject  to,  when,  378. 
property  of  third  persons  in  possession  of  guest  when  subject  to, 

379. 
when  guest  a  servant  or  agent — property  of  master  or  principal,  381. 
when  property  animate,  382. 

when  guest  in  wrongful  possession  of  property,  383. 
when  property  in  possession  of  guest  is  stolen  property,  383. 
some  courts  have  held  lien  would  attach,  383. 
better  doctrine  will  not,  383. 
lien  of  innkeeper  fixed  by  statute,  384. 
lien  lost  or  waived,  385. 
several  ways  lost,  385. 
once  lost  cannot  be  revived,  386. 
boarding-house  keeper  no  lien,  384. 

LIEN  (Carrier's) 

private  carrier's  have  no  lien,  404. 

discussion  as  to  lien  of  private  carrier,  404. 

common  carriers  may  have  lien  similar  to  bailee,  553. 

special,  not  general,  553. 

lien  gives  authority  to  retain  goods  till  charges  paid,  553. 

when  the  lien  attaches,  554. 

when  shipment  of  goods  by  one  without  authority,  555. 

as  where  goods  are  stolen,  555. 

carrier  can  have  no  compensation  or  lien,  555. 

for  what  charges  the  lien  attaches,  556. 

carrier's  contract  must  be  fulfilled,  557. 

lien,  how  lost;  satisfied  or  discharged,  558-560. 

LOCATIO   CuSTODIwE    BAILMENTS — WAREHOUSEMEN,    ELLEVATOB    StOEAGE- 

HousE  Men,  Wharfingers. 
see  Bailee's  Lien. 
LIMITATION  OF  ACTION  (see  Actions)  — 

when  limitation  runs  against  pledgor,  280. 
LIVERY-STABLE  KEEPERS— 
no  lien  at  common  law,  161. 
general  lien  by  statute,  162. 
liability  for  injury  to  hirer  of  livery,  123. 


INDEX,  841 

[References  are  to  sections.] 

LIVE-STOCK.     See  Carriers  of  Goods,  486;    Carrting  of  Live-stock 

487-491. 
LOAN.     See  Bailmbints — Fob  Sole  Use  of  Bailor;    For  Sole  Use  of 

Bailee;  Mutual  Bailments;  Locatio  Bailments. 
LOCATIO  BAILMENTS.    See  Locatio  Rei,  119-131;   Locatio  Opeeis, 

132-163;  Locatio  Custodi^,  164-214. 
LODGING-HOUSE.     See  Innkeeper. 
LUGGAGE.     See  Baggage. 
MANDATUM,  26,  28,  85. 

definition,  how  created,  26,  85. 
see  Bailments. 
MODERN  CLASSIFICATION  OF  BAILMENTS,  28. 

chart  showing  classification  and  liability,  30. 
MORTGAGES— 

chattel,  priority  over  lien,  163. 
mortgage  subject  of  pledge,  270. 
MUTUUM,  ROMAN,  9. 
NEGLIGENCE.    See  Diligence. 
what  is  negligence,  36-38. 
gross  negligence,  39. 
negligence  and  fraud  distinguished,  40. 
a  question  of  law  and  fact,  41. 

classification  of  conditions  and  circumstances  from  which   deter- 
mined, 42. 
negligence  of  skilled  bailee,  48. 
of  banks  and  banking  oflBcers,  50-51. 
how  determined,  51. 

see  Bailment  for  Sole  Benefit  of  Bailor,  84-99;    Fob  Sole 
Benefit  of   Bailb^:,   100-111;    Mutual   Benefit   Bailments, 
112-118. 
in  case  of  special  deposits,  51. 
bailee  may  modify  liability  for,  58-59. 
bailee  cannot  excuse  gross  negligence,  59. 

see  Locatio  Bailments. 
proof  of,  in  locatio  custodier,  202. 
burden  of  proof  of,  202. 
does  burden  of  proof  of,  shift,  203,  204. 
when  does,  in  bailment  cases,  205. 

see  Contributory  Nexjligence,  205. 
NEGLIGENCE,  CONTRIBUTORY— 

bailments,  contributory  negligence  as  defense  in,  205. 
negligence  of  servants,  206. 

see  FEI.LOW  Servants;  Carriers;  Liability  fob  Negligence  of, 
623-628. 
warehousemen,  storage-house  keepers,  contributory  negliegnce,  205, 

206. 
carriers,  contributory  negligence,  defense,  479. 

property  lost  on  account  of  negligence  of  shipper,  479-481,  483. 
passenger  carriers,  contributory  negligence  a  defense,  657,  660-663. 


842  INDEX. 

[References  are  to  sections.] 

NEGLIGENCE,  CONTRIBUTORY  (continued)  — 

if  passenger's  negligence  materially  contributes  to  loss  or  injury — 
defense  for  carrier,  657. 

question  of  fact  for  jury  or  of  law  for  court,  660. 

a  question  of  law,  when,  661. 

test,  would  different  minds  draw  different  conclusions,  661. 

same  subject,  6C2. 

sometimes  excused,  663. 

frailties  of  human  nature  sometimes  regarded,  663. 
see  Actions,  722. 
NEGROES.    See  Cabbiers  of  Passexgees;  Discrimination,  613. 
NEGOTIABLE  PAPER— 

pledging  of  (Ch.  II,  Part  II),  241-244. 

subject  of  pledge  or  pawn,  241. 

delivery  necessary,  241. 

equitable  assignment,  242. 

good  pledge  as  between  parties,  242. 

pledgee  holder  for  value,  when,  243. 

rules  applicable  to  pledgor  obtained  in  pledge  of,  243. 

pre-existing  debt  as  consideration,  244. 

when  sufficient  consideration,  244. 

foreclosure  of  such  pledge,  313. 

not  usual  to  sell  at  public  auction,  313. 

English  rule,  sale  same  as  if  corporeal  property,  314. 

pledgee's  recourse  to  pledged  securities,  what,  315. 

duty  of  pledgee  to  collect  securities,  315. 

must  use  diligence  in  collecting,  316. 

liable  for  negligence  in  collecting,  316. 

pledgee  may  recover  in  an  action  on,  317. 

securities  liable  to  equities  in  maker,  317. 

compromise,  pledgee  can,  318. 
NON-NEGOTIABLE  AND  QUASI-NEGOTIABLE  INSTRUMENTS   (see 
Pledge  and  Pawn  (Ch.  Ill,  Part  II),  245-273— 

nature  and  effect  of  such  instruments,  245. 

indicia  of  ownership  of  property,  245. 

corporate  stock,  pledging  of,  246. 

certificate  of,  not  the  property,  but  represents  it,  246. 

what  a  sufficient  delivery  of,  247. 

indorsement  in  blank,  when  sufficient,  247,  248. 

legal  or  equitable  title,  249. 

equity  will  enforce  transfer  on  books,  when,  249. 

charter  and  by-laws,  importance  of,  250. 

pledgee  protected  against  creditors,  251. 

pledgee  of  stock  by  indorsement  may  transfer  the  title,  252. 

transferee  in  blank  may  write  transfer  over  indorsement,  252. 

transferee  having  apparent  title  may  confer  title,  252. 

pledgor's  remedy  for  wrongful  transfer,  252. 


INDEX.  843 

[References  are  to  sections.] 

NON-NEGOTIABLE,  ETC.,  INSTRUMENTS   (continued)  — 
pledgee's  rights  and  liabilities  after  default,  319. 

pledgee  may  obtain  judgment,  may  sell  property  on  execution, 

may  foreclose  pledge,  319. 
bailor  may  redeem  stocks,  323,  325,  326. 

FOBECLOSUKE  OF  SUCH  PLEDGE. 

broker,  bailee,  may  foreclose  or  sell  stock,  when,  322, 

when  foreclosure  may  be  made,  custom,  usage,  322. 

may  foreclose  for  value  to  pay  margins,  322. 

sale  not  public  but  in  stock  market  by  broker,  322. 

irregularity  in  foreclosure,  may  waive,  324. 

tender  of  amount  when  pledgee  refuses  payment,  325,  328. 

when  stocks  are  entered  in  books  of  company  as  pledgee's  prop- 
erty, 326. 
Bill  of  Lading  Subject  of  Pledge,  253. 

delivery  of,  254. 

with  draft  attached,  256. 

how  far  negotiable,  257. 

bona  fide  holder  of,  258. 

rights  of  bona  fide  holder  of,  259,  260. 
Warehouse  Rex^eipt  Subject  of  PLEa)GE,  261. 

delivery  of,  262,  263,  265. 
Insueance  Policy  Subject  of  Pledge,  266. 

delivery  a  requisite,  how  made,  267,  268,  269. 
Notes,  Mortgages,  Bonds  and  Mortgages,  270. 

delivery  of,  indorsement,  270. 

effect  of  delivery  without  indorsement,  271. 

pledged  sometimes  by  a  full  complete  transfer,  272. 

if  transferred  as  security  for  debt  only  a  pledge,  272. 

equity  would  decree  the  transfer  a  pledge,  272. 

equity  considers  substance  rather  than  form,  272. 

pledge  distinguished  from  chattel  mortgage,  273. 
NOTES  AND  MORTGAGES,  BONDS  AND  MORTGAGES— 
subject  of  pledge,  270. 

transferable  by  indorsement  of  note  in  blank,  270. 
the  note  carries  with  it  its  security,  270. 
mere  delivery  as  pledge  without  indorsement,  271. 
assignment  and  transfer,  272. 

for  foreclosure  of  pledge  of,  313,  314,  315,  316,  317. 
pledgee  may  compromise,  318. 
NOTICE— 

of  intention  to  terminate  gratuitous  bailment,  79. 

pledge  or  pawn,  bailor's  notice  of  intention  to  redeem,  282. 

notice  of  sale  on  foreclosure  of,  304,  306. 
innkeepers,  limiting  liability,  372. 

notice  must  be  brought  to  personal  attention  of  guest,  372. 
common  carriers,  limiting  liability  by  notice,  520. 

cannot  limit  by  mere  general  notice,  520. 

as  to  general  notice  written  or  printed  on  receipt  or  bill  of 
lading,  522. 


844  INDEX. 

[References  are  to  sections.] 

NOTICE   (continued)  — 

as  to  notice  of  arrival  of  goods  at  destination,  581,  564-584. 
express  companies,  565-572. 
carriers  by  water,  573-579. 
carriers  by  railroad,  580-592. 

notice  requisite,  stoppage  in  transitu,  589,  590,  592. 
passenger  carriers,  notice  of  defects  discoverable  by  manufacturer, 

633. 
carriers  by  water,  notice  to  consignee  of  arrival  of  goods,  573. 
must  be  reasonably  diligent  in  giving  notice,  574. 
notice  must  be  actual  for  removal  of  goods  at  proper  time  and 

place,  576. 
notice  dispensed  with  by  contract,  577. 
usage,  course  of  dealing,  etc.,  excuses,  578. 

inattention  of  consignee  to  notice  will  not  prolong  liability,  579. 
three  distinct  views  as  to  notice  of  arrival  of  goods,  581-584. 
OMNIBUS— 

are  carriers  of  goods  and  carriers  of  passengers,  418. 
ORDINARY  BAILMENTS,  29.     See  Bailments. 

Origin  and  Growth  of  the  Bailment  Relation,  1. 
OWNERSHIP— 

bailor's  title  to  the  property  bailed,  20. 
absolute  title  in  bailor  not  necessary,  20. 
one  having  special  property  in,  may  bail,  20, 
bailee  cannot  dispute  bailor's  title,  20. 
bailor  may  sell  or  incumber,  21. 

see  Bailments;  Pledge  or  Pawn;  Innkeepees;  Caeeiees. 
PARTICULAR  OR  SPECIFIC  LIEN.     See  Lien. 
PARTIES— 

to  bailments,  10,  11. 
who  may  be,  11. 
competency  of,  12. 

theory  of  liability  of  infant  bailee,  14. 
disabilities  of,  a  shield,  not  a  sword,  13. 
agents  may  create,  15. 
corporation  may  be,  16. 

see  Actions,  701;   Pledge  and  Pawn;   Caeeiees. 
PASSENGERS.     See  Caeeiees  of  Passengers. 
PASSES- 

drovers  riding  on,  are  passengers,  599. 

fraudulently  obtained,  646. 

one  riding  on  pass  obtained  by  fraud,  not  entitled  to  rights  of  pa.s- 

senger,  640. 
limitation  of  liability  to  persons  riding  on,  666-670 
gratuitous  passes,  667-670. 
passes  for  consideration,  666-667-670. 

the  effect  of  passenger's  signing  conditions  limiting  liability,  666, 
667-670. 
PAWN.     See  Pledge  and  Pawn. 


INDEX.  845 

[References  are  to  sections.] 

PAYMENT— 

pledge  and  pawn,  where  several  debts  secured  by  pledge,  236. 

the  application  of  payments  in  case  of,  236. 

pledgee  may  apply  payments,  23G. 

if  pledgee  does  not  make  application  pledgor  may,  236. 

pledge  terminated  by  payment  of  debt,  328. 
innkeeper,  lien  of  discharged  by  payment,  385. 

carrier  of  goods;  payment  or  tender  required  before  action  for 
refusal  to  carry  goods,  453,  454. 
carrier  may  demand  before  carrying  freight,  537. 
waived  if  not  so  demanded,  537. 
carriers,  amount  due  depends  upon  goods  delivered,  538. 

lien  of,  satisfied  and  discharged  by  payment  of  freight,  559,  560. 
carriers  of  passengers,  payment  of  fare  not  requisite  to  becoming  a 
passenger,  603,  604. 

fraudulently  evading  payment  of  fare  deprives  one  of  privileges 
of  passenger,  604. 

payment  of  fare  when  ticket  lost,  642. 

ejection  of  passenger  for  non-payment,  649,  650. 

payment  for  extra  baggage,  681. 
Peesonai.  Peopeety  Only,  Subject  of  Bailment,  17. 

corporeal  or  incorporeal,  17. 

stocks,  bonds  and  the  like,  17. 

usual  test,  17. 
PIRATES  UPON  THE  HIGH  SEAS— 
are  considered  public  enemies,  474. 
PLEADING.     See  Actions  Against  Caebiees. 
PLEDGE  OR  PAWN  (Part  II)  — 

pignus,  pledge  or  pawn,  26,  28,  215. 

the  relation,  216. 

mutual-benefit  bailments,  114,  215. 

scope  of  business,  216. 

definition,  217. 

essentials,  4,  218. 

parties  competent,  219. 

certain  persons  not  competent  at  common  law,  219. 

must  be  assent  of  parties,  220. 

title  of  the  property — authority  to  pledge,  221. 

corporations,  partnership,  agents,  as  parties,  222. 

property  the  subject  of  the  pledge,  223. 

corporeal  or  incorporeal  property,  224. 

property  not  in  existence  or  not  acquired,  225. 

exceptions,  226. 

potential  existence  or  ownership  sufficient,  226. 

natural  increase  of  property,  subject  of  pledge,  226. 

exempt  property  may  be  pledged,  227. 

pensions,  pay  of  officers  and  soldiers,  228. 

Debt,  Obligation  or  Engagement,  229. 

collateral  security,  the  pledge,  230. 

debt  secured,  contract  should  specify,  231. 


846  INDEX. 

[References  are  to  sections.] 

PLEDGE  OR  PAvVT:>J  (continued)  — 

past,  present  or  future  debt  may  be  secured  by,  232. 

debt  of  another  may  be  secured  by,  233. 

as  to  holding  property  for  another  or  former  debt,  234. 

no  authority  to  so  hold  if  no  contract,  234. 

continuing  security,  future  transaction,  pledge  may  be  for,  235. 

when  several  debts,  application  of  payment,  236. 

pledgee  may  make  application  of  payments,  when,  236. 

where  the  same  debt  is  secured  by  other  collateral,  236. 

sureties  cannot  be  subrogated  to  pledgee's  right,  etc.,  236. 

such  subrogation  obtained  by  paying  debt,  236. 

pledgee  may  hold  for  other  debts  secured  by  it,  236. 

interest  of  debt  secured  as  well  as  principal,  237. 

delivery  of  property  by  pledgor,  acceptance  by  pledgee,  237a. 

possession,  notice  to  world,  237a. 

pledge  good  between  parties  if  no  delivery  of  property,  when, 
238. 

corporeal  or  incorporeal,  17. 
Delivery  of  Pkoperty  Pledged,  what  should  it  be,  239. 

constructive  or  symbolical  delivery,  240. 
Negotiable  Paper,  Pledge  of  (Ch.  II,  Part  II),  241-244. 

promissory  notes  and  other  negotiable  paper  subject  of  pledge, 
241. 

delivery  of,  when  sufficient,  241. 

the  pledge  operates  as  an  equitable  assignment,  242. 

pledgee  holder  for  value,  when,  243. 

rules  applicable  to  purchaser  of,  obtain,  243. 

pre-existing  debt  as  consideration,  244. 
Non-negotiable  Instruments  (Ch.  Ill,  Part  II),  245-273. 

nature  and  effect  of  such  instruments,  245. 

corporate  stock,  pledging  of,  246. 

delivery  of,  what  sufficient,  247. 

indorsement  in  blank,  when  sufficient,  247,  248. 

legal  or  equitable  title — when,  249. 

equity  will  enforce  transfer,  when,  249. 

how  affected  by  charter  and  by-laws,  250. 

pledgee  protected  as  against  creditors,  251. 
•   pledgee  of  stock  may  transfer  title,  apparent  owner,  252. 

pledgor's  remedy  for  wrongful  transfer  by  pledgee,  252. 

bill  of  lading  subject  of  pledge.  253. 

delivery  of  by  pledgor,  254. 

mere  delivery  of  sufficient,  255. 

when  draft  attached,  256. 

how  far  negotiable,  257. 

who  a  bona  fide  holder  of,  258. 

rights  of  a  bona  fide  holder  of,  259. 


INDEX.  847 

[References  are  to  sections.] 

PLEDGE  OR  PAWN   (continued)  — 

bona  fide  holder  from  an  agent,  the  owner,  or  one  having  ap- 
parent authority,  260. 

warehouse  receipt  subject  of  pledge,  261. 

delivery  of  receipt,  when  sufficient,  262,  263,  265. 

indorsement  in  blank,  with  delivery  of  receipt,  262. 

pledge  created  by  mere  delivery  of  receipt,  263. 

if  receipt  made  to  bearer,  265. 
Insurance  Policy  Subject  to  Pledge,  266. 

delivery  requisite,  how  made,  267,  268,  269. 

by  indorsement  in  blank  and  delivery,  269. 
Notes  and  Mortgages,  Bonds  and  Mortgages,  270. 

delivery  of,  indorsement,  270. 

effect  of  mere  delivery  without  indorsement,  271. 

by  full  complete  assignment  and  transfer,  272. 

pledge  distinguished  from  chattel  mortgage,  273. 
Pledgor's  Rights  and  Liabilities  (Ch.  IV,  Part  II),  274-294. 

depends  upon  contract  creating  pledge,  274. 

pledgor's  rights,  generally,  275. 

pledgor  of  valuable  securities — notes,   bonds,  mortgages,  etc., 
276. 

bailee  bound  to  exercise  the  sound  judgment  of  an  ordinarily 
prudent  man — ordinary  diligence,  276. 

pledgor  may  protect  the  pledged  property,  when,  277. 

may  require  pledgee  to  collect  pledged  securities,  277. 

purchaser  of  property  takes  all  the  rights  of  the  pledgor,  277a. 

the  purchaser  may  redeem  the  pledge  and  take  the  property, 
277a. 

the  purchaser  should  give  the  pledgee  notice,  277a. 

pledgor's  interest  subject  to  'legal  process,  278. 

when  debt  barred  by  statute  of  limitations,  279. 

when  statute  of  limitations  will  run  against  pledgor,  280. 

the  pledgor's  right  to  redeem,  281. 

notice  of  intention  to  redeem,  when  necessary,  282. 

implied  warranty  of  title  of  property  by  pledgor,  283. 
Pledgee's  Rights,  Duties  and  Liabilities,  284. 

possession  of  property  necessarily  with  pledgee,  285. 

pledge  an  incident  of  the  debt  and  assignable,  286. 

assignment  of  secured  debt  passes  equitable  interest  in  pledged 
property,  287. 

assignee's  rights  subject  to  contract  of  pledge,  288^ 

pledgee's  right  to  repledge,  when,  289. 

pledgee's  right  to  use  the  pledged  property,  290. 

expenses  and  profits  on  account  of  pledge,  291. 

usual  and  necessary  expenses  pledgee  should  pay,  291. 

profits  and  increase  pledgee  must  account  for,  291. 

pledgee's  liability  for  loss  and  damages,  292. 

ordinary  care  and  diligence  required,  292. 


848  INDEX. 

[References  are  to  sections.] 

PLEDGE  OR  PAWN   (continued)  — 

perishable  goods,  ordinary  care  to  preserve,  292. 

property  lost  by  theft,  292. 

payment  of  debt  releases  pledged  property,  293. 

pledgee  cannot  retain  property  after  payment  of  debt,  to  secure 

other  debts,  293. 
tender  of  amount  due  will  release  property  from  lien  of  pledge, 

294. 
the  lien  is  discharged  but  not  the  debt,  if  tender  is  not  accepted, 

294,  298. 
Pledgee's  and  Pledgor's  Rights  and  Obligations  Afteb  Default 

(Ch.  V,  Part  II),  295-328. 
subdivisions  of  the  subject,  295. 
the  pledgee's  remedies,  296. 
after   default  pledgee  may  foreclose  pledge,  sue  debt,  obtain 

judgment,  levy  execution,  296. 
if  judgment  and  execution  obtained,  may  levy  on  other  prop- 
erty, 296. 
pledged  security  not  lost  by  suit,  judgment  and  execution,  297. 
tender  discharges  lien  but  not  debt,  298. 
pledgee  by  attaching  pledged  property,   or   levying  execution 

upon  it  waives  lien,  299. 
pledgor's  defense  to  action  of  pledgee  on  debt,  300. 
pledge  is  not  affected  by  an  action  upon  the  debt,  300. 
the  pledgor  cannot  offset  property  pledged  in  a  suit  for  the 

debt,  300. 
if  the  property  has  been  converted,  may  offset,  300. 

FORECXOSUEE  OF  PLEDGE  OF  CORPOREAL  PROPERTY,  301. 

pledgor  may  redeem  at  any  time  before  sale,  301,  304. 

equity  of  redemption  remains  in  pledgor  until  sale — cannot  be 

divested  of  it  except  by  foreclosure,  301. 
several  ways  of  foreclosure,  301. 

when  may  sell  under  power  in  contract  of  pledge,  302. 
power  to  sell  implied  if  no  written  contract,  302, 
common-law  foreclosure,  302. 
sale  must  be  public,  302,  303. 
sale,  notice  of,  good  faith,  304,  306. 
pledgee  cannot  be  purchaser  at  sale,  305. 
may  be  if  fair  and  acquiesced  in  by  pledgor,  305. 
good  faith  as  to  notice — place  and  time  of  sale,  306. 
pledgor  cannot  compel  pledgee  to  sell,  307. 
his  remedy  is  to  redeem,  307. 
proceeds  of  sale,  308. 

as  to  surplus  after  sale  and  debt  paid,  308. 
statutory  foreclosure,  309. 
foreclosure  in  equity,  310,  311. 
when  pledgor  a  bankrupt,  312. 


INDEX.  849 

[References  are  to  sections.] 

PLEDGE  OR  PAWN   (continued)  — 

When  the  Property  Pledged  Negotiable  Instruments,  313. 

how  foreclosure  differs  when  negotiable  instruments,  313. 

not  usually  sale  of  at  public  auction,  313. 

under  English  rule  sell  the  same  as  though  corporeal,  314. 

pledgee's  recourse  to  pledged  securities,  what,  315. 

pledgee  must  collect  securities,  315. 

must  use  diligence  in  collecting,  316. 

for  negligence  in  collecting,  liable,  316. 

pledgee  may  recover  in  an  action  on,  317.. 

securities  liable  to  equities  in  maker,  317. 

compromise;  pledgee  can,  when,  318. 
When  Pledged  Property  Consists  of  Stocks  and  Bonds. 

pledgee's  rights  and  liabilities  after  default,  319. 

pledgee  may  obtain  judgment,  319. 

pledgee  may  sell  on  execution,  319. 

or  may  foreclose  pledge,  319. 
Stocks  Held  on  Margins,  Purchased  by  Brokers,  320. 

such  stocks  held  as  pledge  for  advancements  by  broker,  320. 

custom,  usage,  course  of  business  as  to  margins,  321. 

the  customer,  the  bailor  may  redeem  stock,  321. 

if  customer,  the  bailor  should  redeem,  the  broker  the  bailee 
bound  to  deliver  to  him  the  stock,  321. 

if  broker  failed  to  deliver  stock  would  be  liable,  321. 

broker,  bailee,  may  foreclose  or  sell  stock,  when,  322. 

margins  must  be  paid  or  kept  up,  322. 

when  foreclosure  may  be  made;  custom,  usage,  322. 

failure  to  pay  margins  after  notice,  foreclosure,  322. 

sale  not  public,  but  sale  of  stock  in  stock  market  by  broker, 
322. 
Rights  and  Liabilities  of  Pledgor  After  Default,  323. 

may  redeem  at  any  time  before  foreclosure,  323. 

may  tender  amount  due  if  pledgee  refuses  payment,  323-328. 

irregularities  in  foreclosure,  may  waive,  324. 

redemption  in  equity,  325,  326. 

when  stocks  are  entered  in  books  of  company  as  pledgee's  prop- 
erty, 326. 

equity  on  payment  or  redemption  of  pledge  will  decree  recon- 
veyance to  pledgor,  326. 

when  pledgee  refuses  to  reconvey  stocks  so  entered,  equity  will 
decree  it,  326. 

pledgor  is  entitled  to  an  accounting  from  the  pledgee,  327. 
Termination  of  the  Relation  of  Pledge,  328. 

may  be  by  several  ways,  328. 

by  redelivery  of  the  property,  328. 

by  payment  of  the  debt,  328. 

by  tender  of  the  amount  due,  328. 

loss  or  destruction  of  the  pledged  property,  328. 

54 


n 


850  INDEX, 

[References  are  to  sections.] 

PLEDGE  OR  PAWN   (continued)  — 

by  sale  of  the  pledged  property,  328. 
by  merger;  pledgee  purchasing  property,  328. 
by  conversion  of  the  property  by  pledgee,  328. 
when  duty  of  pledgee  to  redeliver  property,  328. 
POSTOFPICE  DEPARTMENT— POSTAL  SERVICE  (Ch.  I,  Part  IV)  — 
liability  of  postofRce  department,  388. 
postmasters,  389. 
liability  of  postmasters,  390. 
carriers  of  mail,  liability,  391. 
POSTMASTERS.     See  Postal  Service,  389. 
POSTOFFICE  DEPARTMENT,  388. 
POSTAL  SERVICE  (Ch.  I,  Part  IV)  — 
liability  of  postoffice  department,  388. 
postmasters  and  their  liability,  389,  390. 
carriers  of  mail,  391. 
PROPERTY— 

bailment;  kind  of  property  subject  of,  17. 
personalty,  not  realty,  subject  of,  17. 
expenditure  to  preserve  property  by  bailee;  when  bailor  liable 

for,  43. 
bailee,  right  to  use  property  bailed,  45. 
often  duty  of  bailee  to  use,  45. 
unwarranted  use  of,  by  bailee,  46. 
bailee  may  protect  property  and  his  interests,  47. 
bailee  may  protect  himself  against  claims  of  third  parties,  53. 
bailee  may  compel  adverse  claimants  to  interplead,  53. 
bailor  may  have  action  for  injury  to  property,  56  (2),  127. 
bailee  must  redeliver  property  when  object  of  bailment  accom- 
plished, 60. 
redelivery  not  always  required,  5,  6,  7,  8,  61. 
excuse  for  non-delivery  by  bailee  to  bailor,  62. 
lien  of  bailee  for  compensation,  67. 
delivery  of  property  for  the  purpose;   bailment  a  requisite  to 

lien,  68. 
possession  of  property  requisite  to  lien,  69. 

finder  of  property  no  compensation  for  mere  finding  and  re- 
turning, 70. 
may  be  reimbursed  for  necessary  good  faith  expenditures,  70. 
right  to  based  on  implied  request  of  owner,  70. 
only  entitled  to  lien  when  reward  offered,  or  provided  by  stat- 
ute, or  when  property  derelict,  70. 
extinction  of  lien  upon,  71. 
lien  once  lost  cannot  be  revived,  73 
by  destruction  of  property,  bailment  terminated,  81. 
borrower  cannot  retain  for  debts  due  him.  111. 
bailor  may  defend  title  to,  127. 

negotiable  paper,  property  subject  of  the  pledge,  241. 
non-negotiable  paper,  property  subject  of  pledge,  245. 


INDEX.  851 

[References  are  to  sections.] 

PROPERTY  (continued)  — 

bill  of  lading,  property  subject  of  pledge,  253. 
bill  of  lading  with  draft  attached,  256. 
warehouse  receipts,  property  subject  of  pledge,  2C1. 
insurance  policies,  266. 
notes,  mortgages,  bonds,  270. 
RAILROAD  COMPANIES    (see  Careiees  of  Goods;    Careiers  of  Pas- 
sengers)— ■ 
are  common  carriers  of  goods  and  passengers,  424. 
not  all  railroad  companies  are  common  carriers,  426. 
railroads  built  for  private  use,  not  common  carriers,  426. 
RECEIVERS  AND  TRUSTEES— 
common  carriers,  when,  425. 
REDELIVERY— 

of  bailed  property,  not  always  necessary,  5,  6,  7,  8,  61. 

necessity  of  redelivery  determined  by  conti'act  express  or  implied, 

5,  6,  7,  8. 
redelivery  at  termination  of  bailment,  110. 

must  redeliver  with  all  natural  accessions,  110. 

if  bonds  or  securities,  with  interest  accumulated  or  collected, 

110. 
bailee  cannot  retain  property  or  accessions  for  debts  due  him, 
111. 
an  exception  to  the  rule  that  must  redeliver,  5,  6,  7,  8. 
money  deposited  in  bank,  not  necessary,  6. 
money  loaned,  not  necessary,  6. 
grain  stored  in  elevators,  not  necessary,  7. 
grain  stored  in  flouring-mills,  not  necessary,  8. 
bailor  may  bring  replevin  for  failure  to  deliver,  when,  60. 
excuse  for  non-delivery,  62. 

pledge  and  pawn,  redelivery  of  property  terminates,  328. 
RIGHTS  AND  LIABILITIES— 

bailments;  gratuitous  and  non-gratuitous  bailments,  32. 
liability  rests  on  benefit  to  the  parties,  32,  34. 
charter  showing  duties  and  liabilities,  37. 

see  Bailments;  Liability  of  Bailor  and  Bailee;  Locatio 
Bailments;    Redelivery;    Pledge  and   Pawn;    Innkeep- 
ers; Carriers,  Public  or  Common;  Carriers  of  Goods. 
liability  of  carrier  of  goods  that  of  an  insurer,  466. 
limitation  of  liability,  466. 
reasons  for  liability,  467. 
animate  and  inanimate  freight,  468. 

when  loss  the  result  of  the  act  of  God,  469,  470,  471,  472,  473. 
when  loss  occasioned  by  public  enemy,  474,  475,  476. 
when  occasioned  by  strikers,  rioters,  robbers,  477. 
when  lost  by  reason  of  the  acts  of  the  shipper,  478,  479,  480,  481, 

482,  483. 
negligence  of  the  carrier,  484, 

where  the  loss  occasioned  by  the  inherent  nature  of  the  property, 
485,  486. 


852  INDEX. 

[References  are  to  sections.] 

RIGHTS  AND  LIABILITIES   (continued)  — 
carriers  of  live-stock,  487-491. 

the  loss  the  result  of  exercise  of  public  authority,  492. 
for  deviation  or  delay,  493-502. 
contract  limiting  liability  of  carrier,  509. 
initial  carriers,  527-531. 
connecting  carriers,  532-536. 

see  Cakjsiees  of  Passengers. 
duties  of  carriers  and  passengers,  609-618. 
passenger  carrier's  liability,  619-664. 

see  Sleeping-cab  Companies,  647,   648;    Limitation  of  Liabil- 
ity; Carriebs  of  Passengers,  619-671. 
Baggage — 

liability  of  carrier  for,  687,  688,  691,  692,  693,  694,  695. 
ROBBERY— 

excuses  liability,  when,  54. 

robbers  are  not  considered  as  the  public  enemy,  474. 
SALES   (see  Bailments,  23,  24,  25,  172)  — 
sale  of  property  by  bailee,  conversion,  63. 
enforcement  of  lien  by,  75. 

grain  stored  in  elevators  or  flouring-mills,  when  a  sale,  when  bail- 
ment, 24. 
delivery  to  warehouseman,  whether  sale  or  bailment,  172. 
pledge  and  pawn,  sale  of  property  pledged  under  power  of  sale  in 
contract,  302. 

power  to  sell  implied  if  no  written  contract,  302. 

notice  of  sale,  304-306. 

pledgee  cannot  be  purchaser  at  his  own  foreclosure  sale,  305 

under  what  circumstances  may  be  purchaser,  305. 

pledgor  cannot  compel  pledgee  to  sell  property,  307. 

his  remedy  is  to  redeem,  307. 

surplus  after  sale  and  debt  paid,  308. 

foreclosure  and  sale  in  equity,  310,  311. 
negotiable  instruments,  sale  of  at  public  auction  on  foreclosure  of 
pledge  not  usual,  313. 

under  English  rule  same  as  though  property  corporeal,  314. 

what  is  the  pledgee's  recourse  to  pledged  securities,  315. 

duty  of  pledgee  to  collect,  not  sell  securities,  315. 
when  pledged  property  consists  of  stocks  and  bonds,  319. 
stocks  held  on  margins,  purchased  by  brokers,  320-322. 

sale  of,  not  a  public  sale  on  foreclosure,  322. 
pledge  relation  terminated  by  sale  of  the  pledged  property,  328. 
carriers  of  goods;  when  carrier  can  sell  goods  to  satisfy  lien,  542. 

his  duty  to  sell  goods  under  certain  circumstances,  542. 

when  he  cannot  carry  them  to  their  destination  because  perish- 
able, 542. 
SAFE-DEPOSIT  AND  TRUST  COMPANIES— 
safe-deposit  and  trust  companies,  194. 
relation  between  depositor  and  company,  195. 


INDEX.  853 

[References  are  to  sections.] 

SAFE-DEPOSIT  AND  TRUST  COMPANIES  (continued)  — 
nature  of  the  relation,  196. 
not  that  of  bailor  and  bailee,  196. 
company  must  exercise  ordinary  diligence,  196, 
diligence  commensurate  with  needs  of  business,  196. 
see  Bailments;  Locatio  Custodle. 
SERVANTS    (and  see  Fellow-Sekvakts,  623-G28);    Liability  of  Mas- 
TEK  FOE  Negligence  of,  206. 
master  is  liable  for  acts  of  while  acting  within  scope  of  employ- 
ment, 206. 
rule  applies  to  corporations  as  well,  206. 
reason  for  rule,  master  has  right  to  choose  servants,  20G. 
SPECIAL  DEPOSIT— 
in  banks,  50. 

determining  negligence  as  to,  51. 
special,  not  general  deposit,  88. 

see  Deposits;  Safe-deposit  and  Trust  Companies. 
STAGE-COACHES— 

drivers  of  stage-coaches,  diligence  in  selecting,  621. 
liability  as  common  carriers,  621,  note  2. 

bound  to  furnish  strong  vehicles,  well-broken  horses,  skilful  and 
prudent  drivers;  liable  for  slightest  degree  of  negligence,  621, 
note  2. 

steamboats- 
Is  the  liability  of  innkeepers  and  steamboat  companies  the  same, 
692. 
STOCKS— 

the  pledging  of  corporate  stocks,  246. 

requirements  of  such  pledge,  246. 

as  to  sufficient  delivery,  247. 

transfer  in  blank,  effect  of,  248,  249. 

how  affected  by  charter  and  by-laws  of  company,  250. 

pledgee  of,  protected  against  creditors,  251. 

pledgee  of  by  indorsement,  may  transfer  title,  when,  252. 

equity  court  invoked  to  protect  pledgor  when  stock  transferred  on 
books  by  pledgee,  252. 

rights  of  pledgee  of  stock  after  default,  319. 

foreclosure  and  other  remedies,  319. 

stocks  held  on  margins,  320. 

liabilities  of  parties,  custom,  usage,  course  of  business,  321. 

foreclosure  of  pledge  of  stocks  held  on  margins,  322. 

not  by  public  sale,  but  sale  in  stock  market,  322. 
STOPPAGE  IN  TRANSITU.     See  Carriers  of  Goods,  586-592. 
STORAGE-HOUSE  KEEPERS,  179-185 

definition,  179. 

carry  on  business  of  moving,  179. 

must  comply  with  contract  of  storage,  180. 

place  where  must  store,  180. 

some  duties  of  bailor,  181. 

must  exercise  good  faith,  181. 


854  INDEX. 

[References  are  to  sections.] 

STORAGE-HOUSE  KEEPERS   (continued)  — 

dangerous  articles,  182. 

when  liability  of  begins,  183. 

when  liability  ends,  184. 

storage-house  keeper  and  warehouseman  same,  185. 
STREET-CAR  COMPANIES— 

are  common  carriers  of  passengers,  420. 

liability  differs  from  common  carriers,  420. 
see  Caeriers  of  Passengers. 
STRIKERS— 

are  not  deemed  to  be  the  public  enemy,  477. 

their  action  will  not  relieve  carrier  from  extraordinary  liability,  477. 

act  of,  will  excuse  deviation  and  delay,  477. 
see  Carriers  of  Goods. 
TENDER— 

pledge  or  pawn,  discharge  of  lien  of  by  tender,  298. 
does  not  discharge  debt,  298. 

innkeepers;  lien  of,  discharged  by  tender,  385. 

carriers  of  goods;  tender  of  freight  necessary  before  action  for  non- 
transportation,  454. 
tender  discharges  carrier's  lien,  5G0. 
TERMINATION— 

bailments,  the  relation  of,  76-83,  211, 

several  ways  of,  noted,  76-83. 

if  bailment  gratuitous,  generally  at  will  of  bailor,  79. 

bailor  must  be  reasonable  as  to,  79. 

bailor  may  terminate,  when,  79  (b). 

for  abuse  or  injury  of  property,  79  (g). 

if  commodatum,  at  will  of  bailee,  79  (h). 

of  termination  of  custody  for  hire,  warehouseman,  211. 

may  be  at  will  of  bailor  by  paying  for  custody,  211. 

several  ways  of  terminating,  76-83. 

pledge  and  pawn,  several  ways  of,  328. 

common  carriers,  561-592. 

delivery  of  goods  to  consignee,  561. 

rules  as  to  delivery,  563. 

requirements  upon  arrival  of  goods  at  destination,  564. 

express  companies,  565-572. 

carriers  by  water,  573-579. 

carriers  by  railroad,  580-592. 
THIEF— 

in  possession  of  property,  may  be  bailor,  20. 
TICKETS— 

issued  as  evidence  of  payment  of  fare,  639. 

is  both  a  receipt  and  a  contract,  639. 

carrier  will  be  held  strictly  to  contract  in,  639 

ambiguous  language  will  be  construed  favorably  to  passenger,  639. 

amount  charged  for  must  be  reasonable;   regulated  by  statute,  639. 

cannot  charge  more  than  reasonable  amount  but  may  charge  less, 
639. 


INDEX.  855 

[References  are  to  sections.] 

TICKETS  (continued)  — 

excursion  tickets;  stipulation  in  must  be  reasonable,  G39. 

stipulation  In,  consideration  for,  639. 

when  agent  of  carrier  violates  conditions,  640. 

when   passenger   violates   conditions   through   fault  of   carrier   or 
agent,  640. 

exhibition  and  surrender  of,  641. 

lost  or  mislaid  ticket,  642. 

reasonable  time  to  find  and  produce  it,  642. 

if  cannot  find  it  after  reasonable  time  required  to  pay  fare,  642. 

stop-over  tickets,  time  limit,  train  limit,  643. 

when  passenger  boards  train  knowing  time  on  ticket  has  expired, 
643. 

over  connecting  lines,  644. 

may  stop  off  at  terminus  of  any  line,  644. 

may  continue  journey  if  passenger  starts  within  limit  of  ticket,  644, 

if  delayed  by  wreck  or  by  fault  of  carrier,  645. 

if  fraudulently  obtained,  645. 

if  a  free  pass  fraudulently  obtained,  645. 

limitations  of  liability,  665-671. 
TITLE— 

by  bailor  not  necessary,  20. 

finder  of  goods  sufficient  for  bailment  of,  20. 

bailee  cannot  dispute  his  bailor's  title,  20. 

title  of  bailee,  21. 

locatio  operis,  bailee  has  special  property  in  thing,  136. 

can  maintain  action  against  third  parties  for  injury  to,  136. 

to  product,  when  material  furnished  and  labor  to  be  sold  and  profits 
divided,  138. 

if  thing  destroyed  during  the  carrying  out  of  the  agreement,  or  after 
furnished,  139. 

if  work  to  be  performed  by  the  job  on  the  thing,  141. 

title  to  material  used  by  bailee  passes  to  bailor  by  accession,  158. 

pledgor  impliedly  warrants  title  to  property  pledged,  283. 
TRANSFER  COMPANIES— 

are  common  carriers,  423. 
WAIVER— 

bailments;  waiver  of  bailee's  lien,  72. 

innkeepers;  of  lien  upon  property  within  the  inn,  375-385. 

common  carriers;  waiver  of  lien,  558. 
WAREHOUSEMEN,  STORAGE-HOUSE  KEEPERS— 

a  mutual-benefit  bailment,  112,  113,  167. 

defined  and  explained,  167. 

public  warehouses,  168. 

bonded  warehouses,  169. 

all  warehouses  public  or  gMCsi-public,  170. 

delivery  requisite  to  liability,  171. 

when  delivery  of  property  to,  a  sale,  when  a  bailment,  172. 

the  warehouse  receipt,  173. 


856  INDEX. 

[References  are  to  sections.] 

WAREHOUSEMEN,  STORAGE-HOUSE  KEEPERS  (continued)- 

receipt  of,  technically  not  negotiable,  174. 

receipt  of,  stands  for  the  property  itself,  174: 

statutes  providing  negotiability  of,  175. 

warehouseman  estopped  from  impeaching  his  own  receipt,  176. 

assignment  of,  as  against  creditors,  173. 

warehouseman  may  insure  property,  177. 

when  diligence  requires  warehouseman  to  insure  property,  177. 

usage  and  general  course  of  business,  effect  of,  178. 

storage-house  keepers  like  warehouse  keepers,  179. 

must  comply  with  contract  of  storage,  180. 

duty  of  bailor  toward,  181. 

as  to  dangerous  articles  in,  182. 

when  liability  begins  and  ends,  183,  184. 

storage-house  keeper  and  warehouseman  the  same,  185. 

common  carriers  when  warehousemen,  186. 

as  to  goods  awaiting  delivery,  187. 

the  New  Hampshire  rule,  188. 

the  third  class  of  cases,  189. 

proper  place  and  kind  of  storage,  200. 

diligence  must  keep  pace  with  improvements,  201: 

bailee  in  custodice  bailments  must  exercise  ordinary  intelligence,  202. 

proof  of  negligence,  202. 

diligence  required,  202. 

burden  of  proof,  202. 

does  the  burden  of  proof  shift,  203. 

question  summed  up  and  rule  settled,  204. 

contributory  negligence,  205. 

negligence  of  servants,  206. 

unauthorized  use  of  chattels,  207. 

delivery,  misdelivery,  nondelivery,  208. 

custodian  must  at  termination  of  storage  return  the  goods,  208. 

confusion  of  goods,  209. 

criminal  liability;  embezzlement,  210. 

termination  of  relation,  211. 

compensation  lien,  213. 

actions  against  the  warehouseman,  214. 
see  Sate-deposit  and  Trust  Companies. 
WAREHOUSE  RECEIPTS.     See  Waeehousemen,  Stobage-house  Keep- 

EKS. 

WHARFINGERS— 

duties  and  liabilities  like  those  of  warehousemen,  190. 

must  exercise  ordinary  diligence,  190. 

when  liability  begins,  191. 

cannot  charge  with  responsibility  until  goods  delivered,  191. 

mere  delivery  of  goods  at  wharf  not  sufficient  to  be  put  in  control  of 

wharfinger,  191. 
as  to  notifying  of  delivery  of  goods,  191. 
when  liability  ends,  192. 


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